vii-llflBXfM 


ij'S?=.''--'"'''!,->^S'  ■"' 


igiai:.4,  «iii^iiik'n*5g.<s:S5a: 


'^m- 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CRIMINAL 


LAW  AND  PROCEDURE 


OF 


CALIFORNIA 


INCLUDING  THE 


PENAL  CODE  OF  CALIFORNIA 


BY 

CHARLES    H.    FAIRALL 

OF  THE  STOCKTON   BAR 


LOS  ANGELES,  CAL. 

CHAS.  W.  PALM  CO. 

1902 


T 

F  \50^c 


Copyright  t902  by  Charles  H.  Fairall 


i 

N 


F»REKACK. 


This  book  is  not  intended  to  cover  the  general  field 
of  criminal  law  and  procedure,  but  rather  to  put 
before  the  public  in  a  concise  and  convenient  form 
the  law  of  this  state  relating  to  crimes.  With  this 
end  in  view  every  criminal  case  decided  by  the 
Supreme  Court  of  California  to  the  present  time  has 
been  examined  carefully. 

It  is  intended  to  make  forms  for  indictment  and 
instructions  a  prominent  feature.  And  many  which 
have  received  the  sanction  of  our  Supreme  Court  are 
to  be  found  herein.  Considerable  attention  also  has 
been  devoted  to  examinations  and  commitments  by 
magistrates. 

The  Penal  Code  as  now  in  force  has  been  included 
with  citations  supplied  by  the  publishers. 

Stockton,  March  9,  1902. 

Charles  H.  Fairall. 


£&7SZ9 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/criminallawproceOOfairiala 


CONTKNTS. 


Page 

CHAPTER  I.     Crimes  and  public  offenses 33 

CHAPTER  II.     Jurisdiction     44 

CHAPTER  III.    Constitutional  rights  of  the  defendant 52 

CHAPTER  IV.     Abduction     71 

CHAPTER  V.     Abortion    74 

CHAPTER  VI.     Adultery   76 

CHAPTER  VII.     Arson    78 

CHAPTER  VIII.     Assault     84 

CHAPTER  IX.     Bigamy    94 

CHAPTER  X.     Bribery    97 

CHAPTER  XI.    Burglary     101 

CHAPTER  XII.    Compounding   crimes    107 

CHAPTER  XIII.     Conspiracy   109 

CHAPTER  XIV.     Contempt    Ill 

CHAPTER  XV.     Crime  against  nature 118 

CHAPTER  XVI.     Defrauding   inn   keepers 119 

CHAPTER  XVII.     Disturbance  of  the  peace 121 

CHAPTER  XVIII.     Election  law,  crimes  against 123 

CHAPTER  XIX.     Embezzlement     131 

CHAPTER  XX.     Escapes     140 

CHAPTER  XXI.     Extortion 143 

CHAPTER  XXII.     False  entry  in  books  of  corporation 146. 

CHAPTER  XXIII.     False   imprisonment    148- 

CHAPTER  XXIV.     False  personation   149 

CHAPTER  XXV.     False   pretenses    151 

CHAPTER  XXVI.     Forgery    158 

CHAPTER  XXVII.     Fraudulently  taking  water  from  main.  167 

CHAPTER  XXVIII.     Gaming 16& 

CHAPTER  XXIX.    Game  laws 171 

CHAPTER  XXX.     Homicide    173 

CHAPTER  XXXI.     Incest     210 

CHAPTER  XXXII.     Kidnapping    212 

CHAPTER  XXXIII.     Larceny    21& 

CHAPTER  XXXIV.     Libel   22& 

CHAPTER  XXXV.     Liquors,  selling  to  Indians 231 


8  C0NTE5NTS. 

CHAPTER  XXXVI.    Mayhem    233 

CHAPTER  XXXVII.    Medicine 235 

CHAPTER  XXXVIII.    Misdemeanor  in  office  237 

CHAPTER  XXXIX.     Perjury     239 

CHAPTER  XL.    Pollution  of  wat  ^r  248 

CHAPTER  XLI.     Rape   249 

CHAPTER  XLII.     Receiving  stolen  goods  257 

CHAPTER  XLIII.    Resietanoe  of  public  officers 261 

CHAPTER  XLIV.     Robbery    263 

CHAPTER  XLV.     Seduction    268 

CHAPTER  XLVI.    Celling  land  twice  272 

CHAPTER  XLVII.     Sepulcher,  violation  of  273 

CHAPTER  XLVm.     TfeTOWing   vitriol    275 

CHAPTER  XLIX.    Train  wrecking  276 

CHAPTER  L.    Trespassing    277 

CHAPTER  LI.     Vagrancy 279 

CHAPTER  LII.    Modes  of  prosecuting  crime  282 

CHAPTER  LIII.     The  pleadings 300 

etIAPTER  LIV.    The  arraignment  313 

CHAPTER  LV.    Continuances 321 

CHAPTER  LVI.     Change  of  venue  325 

CHAPTER  LVH.     The  jury 329 

CHAPTER  LVIH.     Witnesses    346 

CHAPTER  LIX.     Evidence 361 

CHAPTER  LX.     Instructions   4O0 

CHAPTER  LXL     Receiving  the  verdict  439 

CHAPTER  LXn.    Sentence  and  judgment 445 

CHAPTER  LIX.    Duties  Of  counsel  and  the  court 393 

CHAPTER  LXin.    New  trial    454 

mAPTER  LXIV.    iAm>©»1 460 

CHAPTER  LXV.     Habeas  corpus 478 

CHAPTER  LXVI.     Extradition    4«4 

Fienal  Code   4«7 


KORIVIS. 


Abduction     T3 

minor  female  for  prostitution 73 

jAbortion,  for  procuring   75 

submitting  to   75 

Adultery    76 

where  both  married  77 

Arson 82 

inhabited   building    82 

to  defraud  insurer  83 

Assault  with  deadly  weapon   89 

simple 89 

to    murder    93 

Bigamy    96 

Bribery,  juror  asking  for  99 

of  executive   officer    100 

of   judicial    officer    .• 100 

Burglary    106 

Compounding  crimes  108 

Conspiracy   to   commit   crime    110 

to  falsely  charge  with  crime  110 

Crime  against  nature,  upon  a  human  being 118 

upon  an  animal   118 

Defrauding  inkeepers,  generally   119 

by  false  pretenses   119 

by    absconding    120 

Disturbance  of  the  peace  of  the  neighborhood 121 

of  the  peace  by  vulgar  language  in  the  presence  of 

children    122 

of    persons    122 

by  exhibiting  deadly  weapon 122 

by  using  deadly  weapon   122 

by  riot    122 

Election  laws,  fraudulent  registration   134 

voting  twice 124 

fraudulent   voting    125 


10  CRIMINAL  LAW  AND  PROCEDUKE. 

altering  election  returns   126 

changing   ballots    ". 127 

neglect  of  duty    128,  129 

interfering  with  election  oflBcers   128 

wrongfully   counting  votes    129 

unlawfully  acting  as  officer 130 

Embezllement  by  clerk  or  servants 136 

by  trustee    136 

by  officer  of  corporation   137 

by  public  officer   137 

by   bailee   139 

Escapes    140 

conveying  instruments  to  prisoners 141 

injury  to  public  jails  142 

Extortion  by  threatening  letter   144 

generally 145 

by  officer    145 

False  entry,  in  books  of  corporation 147 

omission  to  make  entry    147 

False    imprisonment    148 

False  personation,  marry  in  assumed  name   149 

of  bail 150 

in  acknowledging  a  deed 150 

obtaining  property  by 150 

False  pretenses,  obtaining  money  by  157 

Forgery    generally    164 

offering  for  record 165 

passing  counterfeit  coin 165 

possession  of  counterfeit  coin 165 

fraudulent  possession  of  unfinished  bank  bills  166 

possession  of  counterfeiting  dies   166 

Fraudulently  taking  water  from  main   167 

Gaming,   conducting   prohibited   game 170 

conducting  banking  game   170 

Game  la.w,  killing  and  possessing  game  171 

destroying  eggs  or  nests 171 

killing    birds    , 171 

possessing   birds ,  171 

possessing  or  selling  game 172 

possessing  shot  gun  of  unlawful  calibre  172 

dynamiting   fish 172 

Murder 209 

Incest    , 211 

Kidnapping,   generally    , 213 

taking  out  of  county 213 

child   stealing    214 


FORMS.  11 

Larceny,    generally    226 

petit  and  prior  conviction  226 

conversion  of  real  estate   227 

Libel 230 

Liquor,  selling  to  Indians 232 

Mayhem  generally 234 

assault  to  commit  234 

Medicine,  unlawfully  practicing  '. 236 

Terjury     245 

subornation    246 

Polution  of  water   248 

Rape  by  force   256 

under  age  of  consent   256 

assault  to  commit   256 

Receiving   stolen   goods 260 

Resistance   of   officer    262 

Robbery     266 

Seduction  under  promise  of  marriage  271 

enticing  female  into  house  of  ill  fame 271 

Selling  land  twice   272 

Sepulcher,  violation  of  by  disinterment    273 

Dy   defacing  monument    273 

injuring   shrubbery    273 

defacing   fence    274 

Throwing  vitriol    275 

Train  wrecking   277 

Trespassing,   injuring  timber   278 

by  severing  from  freehold   278 

Vagrancy,  refusing  to  labor  280 

healthy   beggar    280 

roaming   about    280 

known    criminal    280 

associate  of  known  thieves   280 

lodger   in   outhouses    281 

living  in  house  of  ill  fame   281 

capper  for  attorney   281 

prostitute   and    drunkard    281 

Complaint  before  magistrate   288 

Warrant   of  arrest    290 

Commitment  for  examination    292 

Order  of  commitment    293 

Order  of  discharge   293 

Order  admitting  to  bail   293 

Commitment    294 


XABLE  OK  CASES  CIXKI3. 


Aflams  V.  Haskell.  6  Cal.  316 115 

Anscblag   v.    Superior   Court,    76 

Cal.   513 467 

Arnold  v.  Skaggs,  35  Cal.  688...  455 
Barry  v.  Superior  Court,  91  Cal. 

486   113 

Batchelder  v.  Moore,  42  Cal.  415  115 
Bates  V.  Tower,  103  Cal.  406. . .  476 
Benton  v.  Budd,  120  Cal.  332...  398 
Brown  v.  Campbell,  110  Cal.  648  50 
Bruner    v.     Superior    Court,    92 

Cal.   239 55,  297,  299,   330,  331 

Brumley  v.  Flint,  87  Cal.  474...  475 

Buck  V.  Eureka,  109  Cal.  513 48 

Burbank  v.  Dennis,  101  Cal.  104.  387 
Carpenter  t.  Ewing,  76  Cal.  488.  470 
Clifford  y.  State,  58  Wis.  478...  432 
Commonwealth     v.     Webster,     5 

Cushlng  320 422,   428 

Cosby    V.     Ssperlor    Court,    110 

Cal.   45    113,  116 

Crew  V.  Pratt,  119  Cal.  149 48 

Dailey    v.    Superior    Court,    112 

Cal.  94   112,  113 

Deering  v.    Richardson,   Kimball 

Co.,  109  Cal.  83   113 

Dennison    v.    Chapman,    105   Cal. 

447    411 

De  Pedrorena  v.  Superior  Court, 

80    Cal.    146    481 

Dewey  v.  Superior  Court,  81  Cal. 

64  116 

Erwin  v.  State,  29  Cal.  Ohio  St. 

186   432 

Estate  of  Wax,  106  Cal.  347 477 

Ex  parte— 

Abbott,   94   Cal.   333 115 

Acock,   84   Cal.    50 

112,  113,  116,  478,  481 

Ah   Cha,   40   Cal.   426 

93,   446,    450,   481 

Ah  Fook,  49  Cal.  402 59 

Ahern,    103  Cal.   414 448,   481 

Ah  Men,   77  Cal.  198 

111.   114,   116,   478,  481 

Ah   Sam,   83  Cal.   620 479 

Ah   Sing.  87  Cal.  423 50 

Ah  Yem,  53  Cal.   246 364 

Anear,   114   Cal.   370 171 

Arras,    78    Cal.    306 449,450 

Azhderian,  123  Cal.  512 69 

Baker,   88  Cal.  84 284,  285,  314 

Baldwin,   60  Cal.   432 449,  450 

Barry,  85  Cal.  605 112 

Becker,  86  Cal.  492 284 

Becknell,   119  Cal.   496 55,  450 

Bernert,   62  Cal.  524 

169,  388,  447,  471 

Bird,  19  Cal.  130  478 

Booker.   51   Cal.   317 482 

Bowen.   46   Cal.    113 479 

Branlgan,  19  Cal.  133 284,  448 

Brown,    68    Cal.    176 

66,  68,  69,  443,  445 

Brown,  97   Cal.  83 114,  116 

Buckley,    105   Cal.    123 483 

Bulger,  60  Cal.  438 480 

Bull.  42  Cal.  196 470,  481 

Cahill,   52   Cal.   463 62 


Ex  parte— 

Carpenter,  64  Cal.  263 240 

Casey,  71  Cal.  269  lia 

Casey,  85  Cal.   36 449 

Chin  Yan,  60  Cal.  78 448 

Clancey,  90  Cal.  556 116 

Clark,  85  Cal.  203 48 

Clark,  103  Cal.  352 113 

Clark,   110  Cal.  405 113,  479 

Clarke,   54   Cal.   415 62,   296,  315 

Clarke,  126  Cal.  235 114,  116 

Cohen,   5  Cal.   495 116 

Cohen,  6  Cal.  318 113,  116 

Cohen,  104  Cal.  530 113 

Cohn,  55  Cal.  193 112,  478,  470 

Cook,  35  Cal.  107 67 

Cottrell,   59  Cal.   417.  .112,   479,  483 

Crandall,  2  Cal.  144 481 

Crittenden,  62  Cal.  534 116 

Cubreth,  49  Cal.  436 485 

Curtis,  92  Cal.  188 67,  482 

Dalton,    49   Cal.   463 452 

Dinning,  74  Cal.  164 282,  283 

Dobson,   31   Cal.   498 447,  448 

Donahue,  65  Cal.  474... 88,  442,  446 

Duncan,  53  Cal.  411 388,  482 

Duncan,   54  Cal.  78 68,  482 

Edgar,  119  Cal.  123 464,  482 

Ellis,  11  Cal.  223 482 

Ellis,   54  Cal.  206 448,  450 

Erdmann,   88  Cal.   579 449 

Estrado,  88  Cal.  316 

73,  197,  284,  481 

Fenton,  77  Cal.  183 61 

Field,  1  Cal.  187 115 

Fil  Ki,  79  Cal.  584 478 

Finley,  66  Cal.  262 158,  159,  160 

Flood,  64  Cal.  251 450 

Foley,  62  Cal.  509 122,  478 

Foss,  102  Cal.  347 315,  484 

Fredericks,  104  Cal.  400 451,  469 

Gallagher.  101  Cal.  113 480 

Giambonini,  117  Cal.  573 48,  286 

Gibson,  31  Cal.  620 446,  479,  481 

Gilmore,  71  Cal.  624 448 

Gordon,  92  Cal.  478 113,  116 

Gordon,  95  Cal.  378 112 

Gould,  99  Cal.  360.... Ill,   113,  115 

Granlce,  51  Cal.  375 478,  480 

Green.   86  Cal.   426 451 

Gulterrez,  45  Cal.  429 59 

Habling,  66  Cal.  215 167 

Halsted.  89  Cal.  4T1 449 

Harrison.   6.S  Cal.   300.170,   448,  450 

Harrold,    47  Cal.    129 238 

Hartman,   44   Cal.   32 

60.  458,  478,  479 

Havmond.  91  Cal.  545 299 

Hedlev,  31  Cal.  108 45,  133,  134 

Heushaw,  73  Cal.  486 

Ill,  114,   115,  448,  478 

Hoge,  48  Cal.  5 68 

Hollis,  59  Cal.  405 

Ill,   112,   113,   115.   116,  478,  480 

Hong  Shen,  98  Cal.  681 61 

Hope,   59  Cal.   423 106 

Hung  Sin.  54  Cal.  102 67 

Jaynes,  70  Cal.  638 112 

Jones,  41  Cal.  209 478- 


CRIMINAL  LAW  AND  PROCEDURE. 


Ex  parte— 
Jones,  103  Cal.  397 113 

Kearny,  55  Cal.  212.... 48,  304,  478 

Keeney,  84  Cal.  304 480 

Kell,  85  Cal.  309.212,  288,  480,  481 

Kellogg,   64  Cal.   343 112 

Kelly.  28  Cal.  415 450 

Kelly,  65  Cal.  154 446,  449 

Kelly,  120  Cal.  273 479 

Klrby,  76  Cal.  514 451 

Latimer,  47  Cal.  131 115 

Lawrence,  60  Cal.  84 448 

Lawrence,  116  Cal.  298 117 

Le  Bnr,  49  Cal.  159 482 

Lehmkuhl,  72  Cal.  54 479 

Lewis,   79  Cal.  96 485 

Long.    114    Cal.    161 478,  479 

Magulre.  57  Cal.  609 478 

Maler.  103  Cal.  476 171,  478 

Marks,  49  Cal.  680 69 

Max.  44  Cal.  581 93,  446,  479 

McCarthy,    29   Cal.    396 117 

McCarthy,    72   Cal.    386 307 

McCullough,  35  Cal.  101 478.  479 

McLaughlin,   41   Cal.   211 

60,  61,  478,  479 
McNulty.  77  Cal.  168.  .33,  478,  479 

Miller,  82  Cal.  454 

448,  449,  478,  480 

Mirande,    73   Cal.   365 478,  479 

Mitchell.   70  Cal.   1.89,  93,  449,  480 

Moan,  65  Cal.  219 

287,   296,   314,   448 

Moon   Fook,   72  Cal.   10 451 

Morrison,    88   Cal.    113 481 

Morton.   1.32  Cal.   346 451 

Mnrray.    43   Cal.    455 446,  480 

Neustadt,  82  Cal.  274 49,  449 

Nicholas.  91  Cal.  643.. 285,  288,  483 
Noble,  96  Cal.  362 

49,   449,   450,   478,  479 

Orford,  102  Cal.  656 114 

Overend,  122  Cal.  201 115 

Palmer,  86  Cal.  631 134,  479 

Perkins,  18  Cal.  60 112,  478 

Peterson,  119  Cal.  578 172,  304 

Quelrolo.  119  Cal.  636 114 

Raye.  63  Cal.  492 447,  451,  479 

Rlckert.   126  Cal.  244 114 

Rosenblat,  51  Cal.  285 483 

Rosenheim,  83  Cal.  388 449,  479 

Ross,  82  Cal.  108 53 

Rowe,  7  Cal.  176 

114,  115,  116,  354,  480 

Ruffls,   119  Cal.  487 119 

Ryan.  44  Cal.  533 68,  388 

Schmidt.    71   Cal.   212 296,  314 

Shaw,  61  Cal.  58 359 

Silvia.  123  Cal.  293 116 

Sing  Ah  Tong.  84  Cal.  165 449 

Smallman.  .54  Cal.  36 68 

Smith.   .38   Cal.   710 231 

Smith.   53  Cal.   204 112 

Smith.  89  Cal.  79 68,  69,  479 

Sontag.  64  Cal.  525 296 

Soto.  88  Cal.  624 449 

Spears.  88  Cal.  642 283,  481,  485 

Spencer,  83  Cal.  465 112 

Stephen.   114  Cal.   278.. 50,  479,  481 
Sternes,  77  Cal.  156 

114,  478.  479.  481,  485 

Sternes.  82  Cal.  245 212.  483 

Stlce,  70  Cal.  53 115,  3.55 

Strange.  59  Cal.  416 66 

Sylvester.   81   Cal.   199 478 

Taylor,  87  Cal.  91 480 


Ex  parte— 
The  Queen  of  the  Bay,  1  Cal. 

157  481 

Thomas,  103  Cal.  497 76 

Tinkham,   54   Cal.  201 480 

Turner,  75  Cal.  228. .  .447,  479,  481 

Turner,  112  Cal.  629 68,  69 

Vance,  88  Cal.  281 116 

Vance,  90  Cal.  208 450 

VoU,  41  Cal.  31 68 

Wadleigh,  82  Cal.  518.449,  450,  452 

Wallingford,   60  Cal.  103 49 

Walpole,   84   Cal.   584 483 

Walpole.  85  Cal.  362.  .284,  285,  479 

Walsh,  39  Cal.  705 283 

White,   49   Cal.   433 486 

Whitty,  65  Cal.   168 469 

Williams,   87   Cal.    78 479 

Williams,  89  Cal.   421.441,  447,  453 

Williams,  116  Cal.  512 285 

Williams,  121  Cal.  329 

119,  478,  479 

Wolff,  57  Cal.  94 

67,  177,  178.  179,  428 
Wong  You  Ting,  106  Cal.  296. . 

55,  480 

Wright,   119  Cal.   401 325 

Young  Ah  Gow,  73  Cal.  488... 

319.  440,  447,  453,  479 
Zeehandelaar.  71  Cal.  238.  .114,  355 

Palltrick     V.     Sullivan,   119   Cal. 
616    50.  294 

Faulkner    v.    RondonI,    104    Cal. 
148    353 

Fitch  V.    Board    of  Supervisors, 
122   Cal.   285 238,  288 

Foley  V.  Foley,  120  Cal.  39 113 

Foster    v.     Superior    Court,    115 
Cal.  279   114 

Frazer     v.    Superior     Court,    62 
Cal.    50 467 

Gafford  v.  Bush,  60  Cal.  153 49 

Gllleland  v.   State,  44  Texas  356  432 

Grady  v.  Superior  Court,  64  Cal. 
155   115,  116 

Green  v.  Superior  Court,  78  Cal. 
556    33,     49 

Hennessy  v.  Nlchol,  105  Cal.  142  112 

Hinckley  v.   Ayres.   105   Cal.   360    95 

Huerstal  v.  Muir,  62  Cal.  481 

112,    116,  480 

Hunter  v.   Hunter,   111   Cal.  261 

66,     95 

Hurtado  v.  California,  110  U.  S. 
516    59,  282 

In   re- 
Adams,    81   Cal.   163 468 

Ambrosewf,   109  Cal.   266 449 

Barry,   94   Cal.    563 113 

Begerow,    133   Cal.    343 54 

Brown.   32   Cal.   49 206,  448,  481 

Buckley,   69  Cal.   3 115 

Calkins,  112  Cal.   296 414 

Clarke,  125  Cal.  389... 113,  115,  481 

Cohen.    5    Cal.    4»5 111,116 

C«rrveli,   22   Cal.    178 478 

Curtis.    108   Cal.    661 237,  238 

Ebanks.  84  Fed.   Rep.  313 482 

Fife.    110    Cal.    9 55,480 

Fil   Ki.  80  Cal.  201 ...Ill,  449 

Foote,  76  Cal.  543 114 

Gannon,    69    Cal.    541 

50.  112,  292,  297,  298,  314 

Grosbois,    109    Cal.    445 

49,  295,  480 
Guerrero,  69  Cal.  102 327 


TABLE  OF  CODES. 


15 


In  re— 

Howell,  114  Cal.  250 241,  483 

Jossup,  81  Cal.  482 Ill 

Jones,    103    Cal.    397 286,327 

Kennedy,   104   Cal.    429 354 

Kowalsky,   73   Cal.    122 

230,  478,  480 

Kurtz,   68   Cal.   412 49 

Levinson,    108   Cal.   459 60 

Lowenthal,  74  Cal.  109 112 

Marks,  45  Cal.  199 49,  237 

Mitchell,    120    Cal.    384 283 

Mulholland,  97  Cal.  529 449 

Perkins.  2  Cal.  424 4S2 

Ring.    28   Cal.    248 

447,  448,  481,  482 

Robb,  64   Cal.   431 485 

Rogers,    129    Cal.    468 115,355 

Romaine,  23  Cal.  591 483 

Troia,  G4  Cal.  152 67 

Tyler,  64  Cal.  434 112,  115 

Vance,  88  Cal.  262 V.G 

Williams.   82   Cal.   183.. 68,  388.  482 

January    v.     Superior     Court,    73 
Cal,    540 467 

Johnson    v.    Superior     Court,    63 
Cal.  578   112 

Johnson  v.  Visher,  96  Cal.  314. .  445 

Jones  V.  Jones,  71  Cal.  89 216 

Kalloch     V.     Superior    Court,    56 
Cal.   229.. 59,   62,   282,   283.  287,  296 

Kilburn  v.  Law,  111  Cal.  237....   238 

Kuhlman  v.   Superior  Court,  122 
Cal.    636 112 

Latham  v.  Blake,  77  Cal.  649 481 

Levy  V.  Wilson,  69  Cal.  111.298.  331 

Llm  Tai   v.    Hewlll,   56  Cal.   118 

408.  466 

Mansir    v.     Superior     Court,    65 
Cal.   582 67 

Mark  v.  Superior  Court,  129  Cal. 
1    : 114 

McCauley  v.  Weller,  12  Cal.  524    286 

McClatchy     v.     Superior     Court, 
U9  Cal.  413 111.  112,   113 

Morley  v.  Elklns,  37  Cal.  457. . .  464 

Morton    v.    Broderick,    118    Cal. 
474,   483    238 

O'Callaghan     v.     Bode,     84     Cal. 
498    469 

Overend    v.    Superior   Court,    131 
Cal.   280    114,   355,  446 

Page  V.  Superior  Court,  122  Cal. 
209    467 

Patterson   v.     Conlan,     123  Cal. 
453    62,    286,  315 

People  v.— 

Abbott,   53   Cal.    284 218 

Abbott,  101  Cal.  645 

221,  265,  395,  397 

Acosta,  10  Cal.  196 472 

Adams,  85  Cal.  231 

183.    189,    291,  412 

Ah  Bean,   77   Cal.   12 244 

Ah  Chung,  54  Cal.  398 

314,  340,  362,  412 

Ah  Cow,  17  Cal.  102 302 

Ah  Dat,  49  Cal.  652 200 

Ah  Fat,  48  Cal.  61.42,  173,  322,  351 
Ah  Fong,   12  Cal.  345.416,  457,  461 

Ah  F.ook,  62  Cal.  493 97 

Ah  Fook,  64  Cal.  380 

314.  363,   374,   394,  397 

Ah   Fung,   16  Cal.   137 404 

Ah  Fung.  17  Cal.  377 401,  402 


People  v.— 

Ah  Gee  Yung,  86  Cal.   144 

174,   176,  191 

Ah   Gow,  53  Cal.   627 442,  444 

Ah  How,  34  Cal.  218.. 371    .372,  405 
Ah  Jake.  91  Cal.  98... 197,  400,  471 

Ah    Ki,   20   Cal.    178 371 

Ah  Kim,  34  Cal.  181 302,  442 

Ah  Kim.  44  Cal.  .384 459,  461 

Ah  Kong.  49  Cal.  6 190,  471 

Ah   Lee,  60  Cal.  85 178,   196 

Ah  Lee  Chuck,  66  Cal.  662 351 

Ah   Lee   Doon.   97   Cal.   171 

48.   329.   .331.   336,   415,   465 

Ah  Len,  92  Cal.  282  394 

Ah  Len,  98  Cal    1.33 42,  200 

Ah   Loy,   10   Cal.   301. 473 

Ah  Lov.  57  Cal.  566 409 

Ah  Luck.  62  Cai.  503 411 

Ah   Noon.   116  Cal.   656 455 

Ah  Oon,  56  Cal.  188 401 

Ah  Own,  39  Cal.  604 

46,  84,  214,  461 

Ah  Own,  85  Cal.  580 384 

Ah  Peen,  .51  Cal.  280 55 

Ah  Ping,  27  Cal.  491 42 

Ah   Sam,  41  Cal.  645 

163,   166,  309,  454 

Ah  Sing,   19  Cal.  598 225 

Ah   Sing,   59  Cal.  400 401 

Ah   Sing,  95  Cal.  655 

240.   305,   407,  408 

Ah  Teung.   92  Cal.   421 140 

Ah  Tl,  9  Cal.   17 472 

Ah  Ton,  53  Cal.  741 455.  476 

Ah   Toon,    68   Cal.    .362 35,     93 

Ah  Wee,  48  Cal.   236 

372,  375,  396,  412 

Ah  Who,  49  Cal.  32 349 

Ah  Woo,  28  Cal.  206 

160.  164.  208.  209,  300,  306,  310 

Ah  Ye.  31  Cal.  4.51 104,  443 

Ah  Yek,  29  Cal.  576 256,  310 

Ah  Ying,  42  Cal.  18 391 

Ah  You,  47  Cal.  121 334 

Ah  Yute,  53  Cal.  614.  .322,  374,  409 

Ah  Yute,  54  Cal.  90 374 

Ah  Yute,  56  Cal.  119 386 

Ahern,   93   Cal.   519 413 

Alden,  113  Cal.  264 161 

Aleck,   61   Cal.   1.37 317,  364,  371 

Alibez,  49  Cal.   452 308 

Alivtre.  55  Cal.  263 198 

Aliender,  117  Cal.  81 38,  40,  389 

Alsemi,  85  Cal.  4.34 411,  474 

Aiviso.   55  Cal.  230 

46.  205.  208,  347,  373 

Amanacus,   50  Cal.   233 350 

Ames.  39  Cal.  403 365 

Ammerraan.  118  Cal.  28 

62.    263.    285,    303,    307,    369,    370, 

387.    415. 

Anderson,   26  Cal.   130 347 

Anderson,   39   Cal.   703 382,  396 

Anderson,  44  Cal.  65.  .188,  397,  411 

Anderson,  80  Cal.  205 222,  264 

Anderson,    105    Cal.    34 

191,  348,   403,  407,  408 

Angeles,   61  Cal.   188 185,  411 

Anthony,  56  Cal.  397.  .361,  455,  456 

Antonio.  27  Cal.  407 221 

Apgar,  35  Cal.  391 49,  64,  460 

Apple.   7  Cal.  290 305,  475 

Applegate,  5  Cal.  295 49 

Appleton,   120  Cal.   250 

219,   320,   412,  472 


1< 


CRIMINAL  LAW  AND  PROCEDURE. 


People  v.— 

Ardago,   51   Cal.   872 251,  252 

Arlington,   123  Cal.   356.... 164,  382 

Arlington,  131  Cal.  231 

65,   387,   408,  4«9 

Arceo,    32    Cal.    40 55,335 

Armstrong,    114    Cal.    574 

222,  362,  366,  376,  408 

Arnett,   126  Cal.   680 88,  92 

Arnett,   120   Cal.   306..' 60 

Arnold,    15    Cal.    470 

186,  190,  198,  199,  298,  414 

Arnold,    116  Cal.   682 

91,  92,  319,  351,  356,  412 

Aro,  6  Cal.  210 207 

Arras,  89  Cal.  223 61,  222 

Arrlghlnl,  122  Cal.  121 

56,  195,  350,  357,  390 

Arthur,  93  Cal.  536 386,  472 

Ashe,  44  Cal.  288 381,  383 

Ashnauer,  47  Cal.  98 

311,  321,  457,  473 

Ashmead,   118  Cal.   508 

369.    370,  376 

Atherton,  51  Cal.  495.  .339,  406,  414 

Atkinson,   40  Cal.   284 377 

Anbrey,  53  Cal.  427 93,  460 

Avlla,   43   Cal.    196 257,  259 

Awa,  27  Cal.  638     346 

Ayhens,   85  Cal.   86 47,  316 

Azoff,  105  Cal.  632 

341,  342,  344,  388 

Backus,  5  Cal.  275 64,  342,  355 

Bagnell,  31  Cal.  410 409 

Bailey,  23  Cal.  570 133 

Balrd,   104  Cal.   462 356,  381 

Balrd,  105  Cal.  126 373,  378,  474 

Baker,  1  Cal.  404.321,  325,  344,  471 

Baker,   39   Cal.    686 457 

Baker,    100    Cal.    188 

159,   161,   162,  300,  305,  39.5 

Baldwin,  60  Cal.   435 448 

Baldwin,    117    Cal.    244 

252,  253,  329,  330,  347,   359,  405 

Bangeneaur,  40  Cal.  613 457 

Barbour,  9  Cal.  230 470 

Barker,    114   Cal.   620 365 

Barnes,  48  Cal.  551 102 

Barnes,  ft5  Cal.  16 219,  225 

Barnes,   66  Cal.   594 282 

Barney,   114  Cal.  554 

02,  252,   253.  410,  412,  415,  476 

Barnhart.  59  Cal.  381.104,  397.  471 

Barric,    49    Cal.    342 

62,  220,  366,  369 

Barry,   31   Cal.   357 

174,   180,  400,  470 

Barrv.  03  Cal.  62 239,  240 

Barry,   00   Cal.   41 414 

Barry.    94    Cal.    481 101,  102 

Barthleman.  120  Cal.  7 

38.  39.  195.  389,  395.  403,  412,  413, 
471. 

Bartlett.  40  Cal.  142 465 

Bartman.  81  Cal.  200 241 

Barton,  88   Cal.   178 

58.  319,  445,  469,  470 

Bawden.   90  Cal.   199 

40,    179,    206.    285,    287,    314,  389, 

Clark,  67  Cal.  99 63 

403.  406. 

Bea«b,   122  Cal.  37 

49,  172.   282,  283,  285,  286 

Bealoba,  17  Cal.  395 

58.  175.  177.  345,  389,  4«3,  428 

Beam,  66  Cal.  304 309,  323 


People  T.— 

Bearss,  10  Cal.  68... 41,  42,  43,  380 

Beatty,  14  Cal.   567 297,  288 

Beauchamp,  49  Cal.  41 57,  68 

Beaver,  83  Cal.  419... 394,  397,  415 

Beck,  21  Cal.  386 266 

Beck,   58  Cal.   214 

352,  355,  363,  416,  458 

Beeler,  6  Cal.  247 416 

Beevers,  99  Cal.  286 95,  463 

Belden.   37   Cal.   51 219 

Belencla,  21  Cal.  544.  .176.  178,  204 

Bell,  49  Cal.  485 40,  383.  389 

Bell,  53  Cal.  120 353 

Bell.  70  Cal.  34 462 

Bemmerly,  87  Cal.   120 

200,  201,  335,  338,  415 

Bemmerly,  98  Cal.  303 

40,  341,  389,  466,  469 

Bene,   130  Cal.   159 

53,    250.    251,    253.    360,    394,    403, 
412.    455.    472. 

Bendit,    111    Cal.    274 158,  160 

Benlat,   97    Cal.   £49 380 

Bennett,  114  Cal.  56 

Rfi.  ««>    fia.  471 

Benson,  6  Cal.  221 

251,  252,  254,  359 

Bentley,  75  Cal.  407 

88,  92,  368,  420 

Bentley,    77   Cal.    7 

61,  63,  351,  368 

Bernal.   10   Cal.    67 346 

Best.  39  Cal.  691 405,  414,  470 

Bevans,   52   Cal.   470 51,  317 

Bezy,    67    Cal.    224 199.382,396 

Bezy.   73   Cal.   186 472 

Blbby.   91   Cal.   470 

158,  159.  164,  378,  379 

Bldleman,   104  Cal.  615 

S57,  378.  444,  472,  475 

Biggins,    65    Cal.    564 305,316 

Bird,   60   Cal.    7 88.  414,  472 

Bird,   124  Cal.  32 

162,  348,  380,  384 

Bird,    132    Cal.    261 56 

Bishop.  81   Cal.   113 356,  404 

Bltancourt,   74  Cal.   190.... 105,  466 

Black.  120  Cal.  553 463 

Black.    122    Cal.    73 145,  223 

Blackman,  127  Cal.  248 

58,  66.  132,  135,  387 

Blackwell,  27  Cal.  65 

312.  348.  398,  470 

Blake.  65  Cal.  277 S6.  40.  204 

Bogart.  36  Cal.  24o 225,  309 

Boggs.  20  Cal.  4.32 .302,  344,  442 

Bojorquez,   55   Cal.   463 385 

Bolanger.   71   Cal.   17.  .220,  366,  406 

Boling.  83  Cal.  380 

176,  180,  191.  339,  471 

Bonney,    19   Cal.    427 

312,  342,  416,  470 

Bonney,  49  Cal.  426 417 

Bonney,    98   Cal.    278.  .366,  402,  407 

Bonllla.    38    Cal.    699.  .208.  448,  451 

Boo   Doo   Hong.   122  Cal.   606..  235 

Booker,    51    Cal.    317 69 

Borda,   105   Cal.   637 248 

Boscovltch,    20   Cal.    436 358 

Bosquet,   116   Cal.   75 

271,  352,  353,  388 

Botkfn,  1.32  Cal.   231 44,  205 

Bourke,    66    Cal.    457 

414,  415,  417,  470 

Bowen,   43   Cal.   439 350 


TABLE  OF  CASES. 


IT 


People  v.— 

Bowers,    71)   Cal.   415 394,  395 

Bowman,    81    Cal.    566 

179,  316,  370,  381 

Boyle,    64   Cal.    153 118,308 

Bradv,  72  Cal.  490 203,  335,  472 

Branigan,   19  Cal.   133 286 

Brannlgan,   21   Cal.   338 343,  344 

Brav,   105   Cal.   345 231 

Breen.  130  Cal.  72 

62,  297,  312,  321,  323,  348,  467 

Brennan,   121  Cal.  495 

309,  385,  415 

Brick,  68  Cal.   190 206 

Brilliant,    58    Cal.    214 244 

Brittan,  118  Cal.  409 : 

336,  394,  401,  408,  412,  455,  472 
Brooks,    65    Cal.    296.  .319,  440,  451 

Brooks,  90  Cal.  174 472 

Brooks,  131  Cal.  315 

183,  261,  462 

Brotherton,  43  Cal.  530 337,  339 

Brotherton,   47   Cal.    388 

159,  384,  415,  470,  471,  474,  476 
Brown,  27  Cal.  500.  .225,  472,  473 
Brown,    46    Cal.    103.  .321,  322,  323 

Brown,   47  Cal.  447 249,  25(5 

Brown,  48  Cal.  253 332 

Brown,    53   Cal.    67 396 

Brown,  54  Cal.  243 323 

Brown,    59   Cal.   345 

196,  204,  337,  338,  367,  411 

Brown,    72    Cal.    390 335 

■    Brown,  74  Cal.  306 241 

Brown,  76  Cal.  574 

195,  335,  356,  476 
Brown,   105   Cal.   66... 102,  216,  217 

Brown,   113  Cal.  36 448,  450 

Brown,    130   Cal.    591 

192,  414,  472,  475 

Brxiggy,    93    Cal.    483 

175,    176,    1-80,    187,    188,   405,   409, 
410,    412,    414. 

Bruzzo,   24   Cal.   41 61 

Brvant,  119  Cal.  595 153 

Bryon,  103  Cal.  675 107,  315 

Buckley,    49    Cal.    241 338,  442 

Buckley,  116  Cal.  148 

52,  123,  466,  469 

Budd,     57  Cal.  351 57 

Btielna,  81  Cal.  135 216,  221 

Bullard,  51  Cal.  551 348 

Bumberger,   45   Cal.   650 

38,  416,  417,  423 

Burgess,   35   Cal.   118 

104,  305,  308,  446,  447 

Burgle,  123  Cal.  303 90 

Burke,  34  Cal.  663 303,  304 

Burns,  '59  Cal.  359 391 

Burns,  63  Cal.  614 104,  301,  302 

Burns,  75  Cal.  627 41,  123 

Burns,  121  Cal.  529 224,  283 

Busby,  113  Cal.  181 463 

Bush,  65  Cal.  129 

187,  351,  408,  409,  411 

Bush,  68  Cal.  623 

57,  342,  395,  475 

Bush,  71  Cal.  602 

57,  174,  176,  348,  412,  420 

Bushton.  80  Cal.  165 

40.  176,  182,  189,  190,  191,  195, 
352,  376.  389.  421.  430. 

Buster,  53   Cal.   613 404,  405 

Butler,    8    Cal.    441 

181,  297,  393,  474 
Butters,  8  Cal.  441 180 


People  v.— 

Button,  106  Cal.  632 187,  18g- 

Byrnes,  30  Cal.  207 

401.   402,   404,   405    413,  414 

Cadman,  57  Cal.   562 143; 

Cady,    117    Cal.    10 385,  386 

Cage,    48    Cal.    323 00' 

Callego,   133  Cal.   295 205 

Camllo,  69  Cal.  540 53 

Campbell,  30  Cal.  312 

184,  185,  188,  411 

Campbell,  40  Cal.  129 205,  441 

Campbell,    59    Cal.    243 

59,  62,  63,  186,  462,  471 

Campbell,   127  Cal.   278 

155,  156,  219 

Carabln,    14    Cal.    439 216,404 

Carkhuff,    24    Cal.     640 

198,  200,  202 

Carlton,  5(   Cal.  559 59,  198,  199 

Carolan.    71    Cal.    195 350 

Carrlllo,    54    Cal.    64.  .1.33.  402,  406 
Carrlllo,    70   Cal.    643.  .217,  363,  416 

Carroll,    80    Cal.    153 

168,  385,  388,  470 
Carroll,    92    Cal.    572.  .191,  312,  376 

Carrolton,    57    Cal.    559 320 

Car  Soy,  57  Cal    102 355 

Carty,   77    Cal.    216 

62,  386,  387,  391 

Casey,    53   Cal.    360 381,  383 

Case.v,    65    Cal.    260 401,409 

Castro,    60    Cal.    118 251 

Castro,    125    Cal.    521 371,475 

Castro,  133  Cal.   11 253 

Cavanaugh,  112  Cal.  674 98 

Center,  61  Cal.  195 462 

Cesena,    90    Cal.    381 406,457 

Chambers,    18   Cal.   384 221 

Chares,    26    Cal.    79 416,  417 

Chaves,    122   Cal.    134 

195,    199,   286,    343,    372,   406,    412, 
458. 

Chavez,  103  Cal.  407 250,  414 

Chee  Kee,  61  Cal.  404 388,  475 

Cheong  Foon   Ark,   61   Cal.   527 

40,  224,  389 
Chew  Sing  Wing,  88  Cal.  268.. 

178,  402.  406 
Chew  Wing  Gow,   120  Cal.  298 

456,  457 
Chin  Bing  Quong.  79  Cal.  553.  .     91 

Chin   Hane.   108   Cal.   597 

55.    194,    199,    349,    350,    352,    373, 
374,   375,   380,   385,  476. 
Ching  Hing  Chang,  74  Cal.  389 

353    455 
Chin   Mook   Sow.   51   Cal.  597. .' 

55,  202,  353,  375,  382,  387 

Choiser,    10    Cal.    311 208 

Chong  Ah   Chue,  57  Cal.   567..  385 
Choy    Ah    Sing,    84    Cal.    276.  . 

375,  376 

Choynskl,    95    Cal.    640 

144,  401,  405,  406 

Christensen,    85    Cal.    568 

360,  407,  412 

Christian.   101   Cal.  471 287 

Chuey    Ying   Git.    100    Cal.    437 

93,  219,  263,  264,  306 
Chung  Ah  Chune.  57  Cal.  567  55 
Chun  Heong.  86  Cal.  329.  .409,  472 
Chung  Lit.    17  Cal.   321.... 340,  417 

Chu  Quong,  15  Cal.  332 212,  413 

Church,   116  CaL   300 263 

Clark,    49   CaL    455 466 


CRIMINAL  LAW  AND  PROCEKUKF:. 


People  V  — 

Clark,  84  Cal.  573 

181,  im,   360,  376,  400,  407,  409, 
410,  415. 

Clark.  106  Cal.  32 

2G4,  265,  357,  415,  417,  471,  476 

Clark,  121  Cal.  C33 467,  471 

Clark,  106  Cal.  32 

264,  265,  354.  415,  417,  471,  470 

Clark,  121  Cal.  633 467,  471 

Clark,  125  Cal.  2.51 46» 

Clarkp,  42  Cal  022. 461,  462 

Clarke.  130  Cal.  642 

194,  197,  203.  350,  362,  456,  475 

Clary.  72  Cal.  59 266,  471.  47ir 

Clausen,  120  Cal.  381 

258,  2.59.  36d,  383 

Clementshaw,  59  Chi.  385 24P 

Clendenln,  91  Cal.  35 39 

Cleveland,    49   Cal.    577 321.409 

Cllne,    83    Cal.    .^74 

53,  58,  221.  401,  459,  461.  469 

Cloonan,   50   Cal.   449 36? 

Clough,  59  Cal.  438 

221,  266,  334,  365 

Cobler,   108   Cal.   .5.38 

1.32,  134,  306,  378,  406 

Coch,  53  Cal.  627 80 

Cochran,   61   Cal.   .548 

337,  338,  339,  340.  412,  414 

CoCfman.   24   Cal.  2.30 

38,  40,  55,  174,  340,  389,  474 

Cohen,   104   Cal.   524 355 

Cohen,  118  Cal.   74 242,  244,  286 

Cohn,   8  Cal.   42 136 

Cokahnour,    120   Cal.    252 

283.  287,  370.  .394 

Colburn,  105  Cal.  648 303,  383 

Colby,  54  Cal.  37 299,  314 

Cole,    127    Cal.    545 

314,  413,  458,  466,  472 

Cole,  130  Cal.   13 158 

Coleman,   10  Cal.   334 208,  304 

Collins,   48  Cal.   277... 364,  377,  409 

Collins,   53   Cal.    185 102 

Collins,  64  Cal.  293 867 

Collins,  75  Cal.  411 323,  476 

Collins,    102   Cal.   345 230 

Collins.    105   Cal.    504 

45,    58,    310,    333,    335,    337,    338, 
339,  353. 

Collum,   122  Cal.   186 

352,  363,  365,  367 
Colmere.  23  Cal.  632.  .298,  341,  343 

Colon,    119    Cal.    660 462 

Colson,  49  Cal.  679 339 

Colvin.    118   Cal.    .351.. 187,  195,  407 

Comedo.  11  Cal.  71 466 

Compton,    123   Cal.   403 

34.  35,  42,  326,  327,  365,  367,  406, 
420. 

Compton,   132  Cal.   484 55,  333 

Comyns.   114   Cal.   107 220 

Congleton,  44  Cal.  92 

87,   88,   92.   93.   .307,    325,    326,  442 

Conkllng,    111    Cal.    616 

187,  188.  342.  344,  354,  365,  475 

Connor.  17  Cal.  354 309,  470 

Cook,  61  Cal.  478 71 

Coon,    45    Cal.    672. 222 

Copsey,  71   Cal.   548... 336,  346,  350 

Corbctt,    28    Cal.    328 313,316 

Cornell.    16  Cal.    187 49,  460 

Costello,   15  Cal.   350 195 


People  V  — 

Cotta,  49  Cal.  100 

179.   326,   338,   340,    349,   367,    404, 
410. 

Cottle,   6   CaL   227.    337 

Cowgill,   93   Cal.   596 

351,  401,  407,  412 

Cox,    9   Cal.   33 304 

Cox,    40    Cal     275 135,315 

Cox,   45   Cal.   342 272 

Cox,   70  Cal.   281 179,  203,  416 

Coyne,    116    Cal.    295 341 

Coyodo,    40    Cal.    586 332 

Craig,    50    Cal.    370 300 

Craig,    59    Cal.    370 262 

Craig,  111  Cal.  400 

175.  176,  178,  199,  347,  378 

Crandall,    125   Cal.   129 

193,  350,  354 

Crane,    60    Cal.    279 466,468 

Cregan,   121  Cal.  5.54 

101,  343.  364,  365,  366,  406,  470 

Crenshaw,  46  Cal.  GO 206 

Crespl,  115  Cal.  50 228,  286,  35'4 

Crews,    102    Cal.    174 202 

Cronln,  34  Cal    191 

199.   206,    207,   208,   209,    300,   348, 
362.   363.    403. 

Crowey,   56  Cal.  36 

180,  297,  312,  314,  329 

Crowley.  100  Cal.  478 

104,    263,   350,   352,   356,   357,   454, 
471. 

Cnddihi,  54  Cal.  54 301- 

Cuff.    122    Cal.    589 

102,   204,  306,  308,   370,   379,  404 

Cuintano.   15   Cal.   .328 297 

Culluni.   122  Cal.   187 41 

Cummings,    57    Cal.    88 162,413 

Cummings,   113   Cal.   88 403.  470 

Cummings,  114Cal.  437 153,  154 

Cummings,    117    Cal.    497 

105,  155,  441 

Cummings,    123   Cal.   269 62,  154 

Cunningham,  66  Cal.  669 

221.  378,  379,  381,  386 

Curlee,  53  Cal.   604. 405 

Curry,    103    Cal.    548 403 

Curtis,    50    Cal.    95 242 

Curtis,   76  Cal.   57.  .60,  61,  223,  416 

Curtis,   113  Cal.   68 399 

Dally,    59    Cal.    600.- 198 

Dalton,    58    CaL    228 

273,  301,  303,  304 

Daniels,    70   Cal.   521 476 

Daniels,    105    Cal.    266 

109,  366,  375,  398,  463,  471.  476 

Darr,   61   Cal.   554 311,  338.  473 

Davidson,    5   Cal.    134 .-..42,     92 

Davis,  47  Cal.  93 332,  410,  414 

Davis,    61    Cal.    536 242 

Davis,    64    Cal.    441 362 

Davis,  73  Cal.  357 

206,  207,  208,  329 

Davis,  97  Cal.  194 215,  217 

De   Carlo,   124   Cal.   462 242.  243 

Do    Coursey,    61    Cal.    136.  .219,  308 

Deegan,    88   Cal.   607 

54,  341,  344.  356 

Defoor,  100  Cal.   155 61,     64 

De    Graaf,    127    Cal.    676 

156,  218,  412,  416 
De  Lacey,  28  Cal.  590,  321.  323,  455 
De  la  Guerra,  31  Cal.  461.  .305,  307 


TABLE  OF  CASES. 


19 


People  v.— 

Delanv,    49    Cal.    394 318 

De  Lay,  80  Cal.  52 131,  134 

Demasters,    105   Cal.   C69 

233,  410,  413 

Demasters,    109   Cal.    GOT 453 

Demonsset.  71  Cal.  G12 71 

Deuby,    108   Cal.    57 

185,  2G1,  280,  356,  382 

Dennis,   39  Cal.   G25 

38,  345,  356,  410,  423 
Devine,    44    Cal.    452.  .352,  3.53,  357 

Devlne,    46   Cal.    46 330,  371 

Devine,   56   Cal.    63 34 

Devlne,   59   Cal.    6:50 85 

Devine,    95    Cal.    229 

36,  217,  224,  394,  397,  414,  415 

De  Wlnton,   113  Cal.   408 

79,  80,  81,  387 

De  Witt,   68  Cal.  587 188,  354 

Diaz,    6  Cal.   248 323 

Dice,    120    Cal.    189 

175,  196,  199,  204,  353,  472 

Dick,    32    Cal.    213 

362,  405,  415,  470 

Dick,   34  Cal.   663 

401.   405,   413,   444,  470 

Dick,    37    Cal.    280 

207,  300,  302,  305,  338,  458 

Dick,  39  Cal.  102 400 

Dllwood,    94    Cal.    90.  .362,  367,  389 

Dlnsmore,   102   Cal.   381 306,  334 

Dlson,   94   Cal.   225 

366,  367,  368,  380,  414,  477 

Doane,  77  Cal.  560 

133,  135,  412,  472 

Dodel.   77  Cal.  293 84.     85 

Dodge,   28   Cal.   445 321,  323 

Dodge.  30  Cal.  450 197,  410,  411 

Doggett,  62  Cal.   29 381,  382 

Dolan,    9    Cal.    576 206,207,208 

Dolan,   96   Cal.    315 

284.  314,  334,  406,  459 

Dole,    122   Cal.    486 

42,    162.    164,    307,    356,    337,    362, 

376,  409. 

Dollor,    89    Cal.    515 85,  188,  412 

Donahue,  45  Cal.  321 415 

Donaldson,  70  Cal.  116 

155,  136.  157,  476 

Dongull,   92  Cal.   603 

183.  188,  415,  470 

Donnell.  110  Cal.  65.5 238 

Dougherty,   7   Cal.   390 46,  301 

Douglass,  87  Cal.  283 

91.  310,  444,  447,  453 

Douglass,   100   Cal.    1 

53.  66,  385,  387,  388,  412 

Dowell,    64   Cal.   467 404 

Dovell,    48    Cal.    95 

174.   175.    177.   178,   179.    181,   344, 

352,    409.    428. 

Duchow,   87  Cal.   113 a82 

Duncan,  54  Cal.  75 68 

Dunlap,   113   Cal    72. 243,  310 

Dunne,    80   Cal     34 

177.  181.  184.  344,  390,  472 
Durrant,  116  Cal.  179 

55.  60.  111.  192.  \m.  197.  204,  331. 

a32.    333,    3.S4,    335,    ^^7.    3.S8,    339, 

342.    344.    351.    353.    357,   359.    363, 

377,  390.    397,    399,    412,   415,    461, 
470.   472,   473. 

Durrant,  119    Cal.  54 

398.  446.  447.  451,  468 
Dve,  62  Cal.  523.  .344,  345,  464,  466 


People  v.— 

Dye,    75    Cal.    113 188,353,381 

Eagan,  98  Cal.   230 223 

Eagan,    116   Cal.    287 

307,  309,  362,  398,  473 

Earnest.  45  Cal.  29 298 

Eastman,  77  Cal.  .171 21T 

Ebanks,    86    Cal.    295 40 

Ebanks.   117  Cal.   6.52 

195,   311,    Xif),   340,   .^43,   352,    362, 
378,    384.    414.    461.    469,    470,    471. 

Ebanks,   120  Cal.  620 '. 

282.  287.  388,  446,  451,  461 

Ehner,   23   Cal.   1.59 57 

Eckert.   16   Cal.   111... 328,  363,  406 

Eckman,   72   Cal.   .583 

362,  369,  382,  475 

Edson,  68  Cal.  .549 98.  303 

Edwards,  41  Cal.  641.. 197,  337,  382 

Edwards.    .59    Cal.    3."i9 105 

Edwards.    101   Cal.   543 3.33 

Egan.   116  Cal.   287 127 

Ehrlng,    65    Cal.    1.35 196 

Elkins,    122    Cal.    6.54 460 

Elleuwood,    119    Cal     166 

307.  309,  348,  402,  407 

Elliott.  SO  Cal.  296 

40,  56.  190.  191,  326,  389,  471 

Elliott,  90  Cal.  586 

34,  159,  160,  369 

Elliott,  119  Cal.  594 

270.  381.  384.  412 
Ellsworth,  92  Cal.  594.. 50,  331,  390 

Elyea,    14    Cal.    145 56 

Emerson,    130   Cal.    562 

189.  318,  360,  472 

Emmons,  61  Cal.  487 84 

Enslish.    3    Cal.    211 88 

English,    30    Cal.    215 

92.  93,  196.  304,  310,  400,  442.  440 

English.   52  Cal.   212 364,  466 

Epplnger.  105  Cal.  36 

63.  163.  440.  446.  456,  459,  471 

Epplnger,    109  Cal.   298 

Eppinger,   114   Cal.   .332 416 

P.3.  440.  446,  459.  471 

■    Eslabe.    127    Cal     24.^ .%9.  .386 

Estrado,   49   Cal.    171.  ..307,  .374,  404 
Estrado,   .53   Cal.   600.  .2.56.  310,  472 

Etting,    99    Cal.    .577 

50.  221,  265,  311,  411 

Eubanks.   86  Cnl.  29:? 389 

Evans,    124    Cal     209 

175.  176,  180,  339,  340 

Fagan.   OR  Cal.   .5.34 221 

Eagan.   98  Cnl.   2.30 390 

Fahev.     64    Cal.     342 49 

Pair.   43  Cal.   137.  ..SS,  340.  .382.  455 
Farley.    124   Cal.   .595.  .187.  194,  198 

Farmer,    77    Cal.    1 200 

FarrplI,    30    Cal.    310 163,366 

Fanlke.   96   Cal.   20 

,34S.  394,  403,  466 

Faun  Ah   Sing.  70  Cal    8 455 

Faust,    113    Cal.    172 

50,  157,  231,  308 

Fehrenbach,  102  Cal.  402 

348.  356.  367.  378.  408 
Feilen.  58  Cal.  218.  .66.  95,  315,  387 

Fellows,  122  Cal.  23m 

38,  41.  298.  330,  332.  414 

FenwicK.   45   Cal    287 383.  471 

Fprirnson.  .34  Cal.  .300 41.5.  468 

Ferrell,    .31    Cal.    .5R.-5 36 

Ferris,   55   Cal.   .591 

38.  40.  174.  204,  389,  423 


20 


CRIMINAL  LAW  AND  PROCKDURK. 


People  v.— 

Ferris,  50  Cal.  444 305,  417,  442 

Ferry,  84  Cal.  31 356,  363 

Flee,  97  Cal.  459. ..  .412,  456,  472 
Fick,  89  Cal.  144 .... 212,  402,  474 

Findley,  132  Cal.  301 

40,  41,  135,  415 
Fine,  77  Cal.  147.. 92,  301,  375,  412 

Fisher,  51  Cal.  321 

78,  79,  80.  326,  458,  466 

Fltchpatrlck,  106  Cal.  286 472 

Fltzpatrick,  80  Cal.  538 

220,  257,  376,  384 

Flahave,   58   Cal.   249 188,  465 

Flannagan,  60  Cal.  2 184,  191 

Flannelly,    128   Cal.   83 

57,  59,  187,  ,284,  291,  336.  376,  457 

Fleming,  94  Cal.  308 

249,  250,  252,  255 

Flood,  102  Cal.  333 

396,  456,  457,  472,  473 

Flores,   64   Cal.  426 409 

Fly,    107   Cal.   497.. 134 

Flyn,   73   Cal.   511 

103,  319,  401,  403,  407,  412 
Fong  Ah  Sing,  64  Cal.  256.  .202,  392 
Fong  Ah  Sing,  70  Cal.  8.  ..201,  475 

Fong  Ching,   78  Cal.   169 

97,  98,  337,  366,  401 

Fong    Hong,    120    Cal.    683 

78,  79,  80,  82 

Forbes,  22  Cal.  136 451 

Foren,   25   Cal.    365 

174,  175,  176,  178,  179 

Forney,  81  Cal.  118 87,  303,  310 

Forsy the,    65    Cal.    101 

375,  397,  404,  472 

Fowler,    88    Cal.    136 

71,  319,  441,  464 

Francis,    38    Cal.    187 321,322 

Frank.  28  Cal.  513 

159,  160,  164,  307,  309,  379,  475 

Franklin,  70  Cal.  641 

40,  87,  204,  412 
Fredericks,    106   Cal.    555 

45,  326,    327,    336,    337,    339,    369, 
376.  457. 

Freel,  48  Cal.  436 176,  180,  429 

Freeland,  6  Cal.  96 

180,  207,  297,  312,  323 
Freeman,  92  Cal.  3o9 

336,  400,  456,  457 

French,    69    Cal.    173 194,348 

French,    95    Cal.    371 216,477 

Freshour,    55    Cal.    375 355 

Frick.  89  Cal.  144. 35,  36,  67 

Frigerio,  107  Cal.  152 

156,  219,  303,  394 

Fuhrlg.   127   Cal.   412 200 

Fultz,  109  Cal.  258 334,  378,  379 

Fnqua,  58  Cal.  245 87 

Fnqua,  61  Cal.  377 317,  440 

Furtado,   57   Cal.   345 353,  471 

Gaines.  52  Cal.  479 316,  470 

Gale,    77  Cal    120 133 

Gallagher,  100  Cal.  466 

42.  131.  133,  135,  356,  357 

Galvin,  9  Cal.   116 57,  410 

Gannon,  61  Cal.  476. 405 

Garcia,  25  Cal.  531 

46.  208.    209.    223,    223,    304,    305, 
370,    405.    417. 

Garcia.  58  Cal.  102 309 

Garcia,    63   Cal.    19 201,364 


People  v.— 
Gardner,  98  Cal.  127 

252,    255,    352,    385,   386,    387,   451, 

455    458. 

Gam'ett,  29  Cal.   622 

223,  308,  351,  338,  379 

Gamett,   35   Cal.   470 272 

Garnett,    129   Cal.    364 43,  440 

Gassaway,    23    Cal.    51 221 

Gates,    46    Cal.    53 76 

Gatewood,   20   Cal.   147 

297,  305,  334 

Gaunt,   23   Cal.   158 321,  334 

Gehr,    8   Cal.    359 337,  340 

Geiger,  49  Cal.  643 298.  367.  368 

Gelger,    116   Cal.    440.  .105,  391,  472 

Gelabert,  39  Cal.  663 372 

George,    121   Cal.   492 286 

Getty,   49   Cal.    581 

103,  221,  365,  466 

Glacamella,  71  Cal.  48 80,  303 

Giancoll,  74  Cal.  642 

364,  376,  403,  412 

Gibbs,   98  Cal.   661 

153,  154,  156,  414,  463 
Gibson,   17  Cal.  283. .  .178,  403,  406 

Gibson,  53  Cal    601 406 

Gibson,    106   Cal.   476 

179,    192,   193,   362,   408,    463,   467, 

470,    474. 

Giesea,  61  Cal.  53 95 

Giesea,    63    Cal.    343 53,461 

Gilbert,  57  Cal.  96 458 

Gilbert,  60  Cal.  112 

263,  414,  415,  470 

Gill,  7  Cal.  357 60 

Gill,    45    Cal.    285... 221,472 

Gillis,    97    Cal.    542 348,469 

Gilmore.    4    Cal.    370 64 

Glrr,   53  Cal.  629 303 

Gleason,   99   Cal.    359 210 

Gleason,    122    Cal.    372 

3.51,  353,  382,  414,  415 
Gleason,  127  Cal.  .'523.  .357.  379.  395 
Glenn,    10    Cal.    33. ..  .200,  202,  475 

Godwin,  123  Cal.  374 397 

Goggins,  80  Cal.  229 225,  307 

Goldliuiy,    10    Cal.    313 466 

Golden.    62    Cal.    542 233 

Gtoldenson,   70  Cal.   346 

•56.    265,    287,    297,    314,    323,    324, 

326,    327,    330,   340.   344,   345,    369, 

390,   395,    396,    397,    399,   455,   464, 

467,  475. 

Goldstein,    32   Cal.    432 60 

Goldsworthy,    130   Cal.    600 

39,  82,  104,  105,  302 
Gomez,   118   Cal.   328.  .250,  252,  255 

Gonzales,    71    Cal.    577 

187.  188,  189.  364,  371,  432 

Goodwin,    123   Cal.    374 352 

Goodwin,  132  Cal.  368.268.  270,  371 

Gordon,    70   Cal.   467 86,  250 

Gordon,    88    Cal.    422 

64,  388,  389,  401,  405,  471 
Gordon,    99    Cal.    2.33 

60,   64,   88,  92,  383,   386,  387,  442, 

44G. 

Gordon,  103  Cal.  568 

204,  357,  382,  894 

Gordon,  133  Cal.   331 

131,  133,  134,  139 

Goslaw,  73  Cal.  325 35,  175,  177 

Gosset,  93  Cal.  641 

168,  307,  362,  384,  388 


TABLE  OF  CASES. 


21 


People  v.— 

Graham,   21   Cal.  261 

252,  323,  372,  390,  396,  466 

Grancoli,  74  Cal.  645 187 

Granloe.   50  Cal.  448 48,     92 

Grav,    61    Cal.    164 

188,    200,   201,    297,    298,   341,   344, 
409,  410. 

Gray,    06    Cal.    271 

13.5,  138,  378,  412,  485 

Green,  15  Cal.  512 224,  307 

Green,   54   Cal.    592 240 

Green   99   Cal.   .504 57,  396 

Greene,   100  Cal.   142 60,     65 

Greening,   102  Cal.  384 81,  3.59 

Gregory.   120  Cal.   16.  ,348,  367,  398 

Gress,    107   Cal.    463 198 

Griffin.    19    Cal.    578 103 

Griffin.   .52  Cal.  616 37? 

Griffin,  117  Cal.  383 250,  257 

Griffith,   122   Cal.   212 

157,  310,  462,  466 

Grigshv,  62  Cal.  48 179 

Grimes,   132  Cal.   30... 184,  186,  198 

Griner.  124  Cal.  19 

197,  311,  349,  456 

Gross,   123  Cal.   389 199,  404 

Grundell,  75  Cal.  301 

365.  366,  386,  387,469 

Guidice,  73  Cal.  228 92,  188,  412 

Gusti,  113  Cal.  177....2.S1,  307,  308 
Gutierrez,  74  Cal.  83.  .319,  441,  451 

Hagserty.    46    Cal.    355 79 

Hall,  !I4  Cal.  595 

102,  106,  202,  309.  375,  397,  410 

Hamherg,    84    Cal.    468 

49,  63,  65,  154,  349,  395,  397,  448 

Hamniin,  68  Cal.   101 179,  350 

Hamilton,  46  Cal.   54o 

251,  252,  253,  473 

Hamilton.    62    Cal.    ,377 

40,  335,  336,  337,  389,  411,  425 

Hamilton,   103  Cal.   489 133 

Hannon,    83    Cal.    374 103,221 

Hanselraan,  76  Cal.  460 

217,  225,  307 

Hansen,    84    Cal.    291 217,218 

Han  Tin,  57  Cal.  142 336 

Hardin.    37    Cal.    259 338 

Hardisson,   61   Cal.   .378 -. 

62,  284,  362,  363 

Harlan,    133    Cal.    10 254 

Harrington.    42    Cal.    168 59 

Harris,  26  Cal.  269 36 

Harris,   29  Cal.   681 34,  204 

Harris,    114    Cal.    oT3 373 

Harris,   125  Cal.  94 187 

Harrold,  84  Cal.  56T 

159,  165,  303,  307 

Hartman,    62    Cal.    562 381 

Hartraan,  103  Cal.  242 54,  254 

Hartman,   130   Cal.   487 

94,  95,  332,  414 

Haiin.   44  Cal.   96 174,  412 

Hawes.  98  Cal.  648 

191,  193.  194,  200,  201,  354,  369 

Hawkins,  34  Cal.   181 257,  308 

Hawkins,   127   Cal.   372.  .53,  60,  261 
Hawlev,    111   Cal.   78.  .342,  352,  395 

Hecker.   109   Cal.   451 

181,    184,    187.    188.    189,    409,   410, 
414.  432. 

Helbing,    39   Cal.   .567 440 

Helbing,  61  Cal.  620 63.    86 


People  V. — 

Henderson,  28  Cal.  466 

196,    198,   298,   328,   340,   410,   458, 
470. 

Henry,  77  Cal.  445 

53,  106,  225,  307,  308,  459 

Herbert,   61    Cal.    .544 

188,  189,  242,  370,  432,  463 

Hersey,   53   Cal.   574 416 

Hertz,   105   Cal.   660 

258,  347,  401,  405 

Hettick,   126  Cal.  425 

38,  40,  389,  391,  443 

Hlckev,   109   Cal.   275 118 

Hickman,   113   Cal.   80 " 

35.    333,    335,    351,    352,    369,-  370, 
.394,   473. 

Hicks,   53   Cal.   334 407,  408,  418 

Hicks,   66   Cal.    103.    307 

Hidden,   32  Cal.   445'. 297,  298 

Hipglns,   59   Cal.   3.58.... 57,  61,     64 

Higgins,   114  Cal.  63 315,  462 

Higuera,  122  Cal.  466 269,  441 

Hill,   16   Cal.    113 454 

Hill,   78   Cal.   406 467 

Hill,   94   Cal.   595 104 

Hill,    116    Cal.    562 

192,  194,  373,  390,  414 

Hill,   123   Cal.   571 203,  362,  383 

Hiltel,    131   Cal.   577 78,  79,  286 

Hitchcock.    104    Cal.    482 

240,  305,  348,  401,  403,  407 

Hobson,    17  <Cal.    424 

38,  405,  417,438,  470 

Hodgdon.    55    Cal.    72 200,  458 

Hodges,    27   Cal.    340 41,     51 

Hoffman,    126    Cal.    366 143 

Hoin.   62  Cal.   120 38,  39,  423 

Holland,   59   Cal.   364 

49,  88,  93.  442 

Hollis,  65  Cal.  78 462 

Holmes,   118  Cal.  444 

57.  58.  109,  181.  344,  356,  366,  367, 
.368,    410.    444.   469,   472. 

Holmes,   126  Cal.   462. 323,  413 

Holtz,    73    Cal.    241 456 

Hong   Ah   Duck,   61   CaT.    387. . 
191.    193.    195,    199,    207,    208,    319, 
358    389^ 
Hong  Quin  Moon,  92  Cal.  41.. 

156,  455,  472 

Hong   Tong,    85    Cal.   171 366 

Honshell,    10   Cal.   83.. 181,  184,  465 

Hood,    6   Cal.   236 305,  310 

Hope,  62  Cal.  291 

103,  284,  344,  412 

Horn.  20  Cal.  17 60,  398,  462 

Hough,   120   Cal.   538 268,  269 

Howard,    74    Cal.    347 453,  456 

Howard,  111  Cal.  6.55 

244.  283,  285,  287,  407 

Howard,  112  Cal.  133 188,  476 

Hoy  Yen.  34  Cal,  176 371,  476 

Hubert,  il9  Cal    216 38,     39 

Huff.    72   Cal.    117 38,  469,  470 

Hughes,    29    Cal.    2.58 

79,  81,  302,  343,  344,  447 

Hughes,  41  Cal.  234 61,  223,  266 

Hunckeler,  48  Cal.  331 60,     64 

Hunt,    59    Cal.    430 

179,  186,  344,  403 

Hunt,    120  Cal.    281 261,  303 

Hunter,   54   Cal.   65 297,  314 

Hurlev,   8  Cal.   390.... 185,  188,  417 


22 


CRIMINAL  LAW  AND  PROCEDURE. 


People  v.— 

Hurley,   60   Cal.    74 221,473 

Tlnrley,   126  Cal.   Sni 97,  98,  380 

Hurtado,  63  Cal.  288 

38,  179,  180,  181,  405,  409.  425 
Hyndman,   99   Cal.   1.  .188,  199,  207 

lams,  57  Cal.  115 

175,  186,  188,  198,  329,  333,  334 

Irwin,  77  Cal.  449 

198,    330,    .S37,    352,    364,    365,   367, 
370,  371,  372,  375,  434. 

Ivey,  49  Cal.   .56 400 

Jackson.  57  Cal.   .316 416 

Jacobs,    29    Cal.    579 87,  307 

Jacobs,  49  Cal.  384 354 

James,  97  Cal.   400 61 

Ja-mes.    110   Cal.    1.55.. 159,  160,  162 

January,  70  Cal.  3S 34,     68 

January,  77  Cal.  17D 415,  465 

Jarnarillo,    57   Cal.    114 170 

Jefferson,  52  Cal.  4.52.  .104,  205,  317 

Jenkins.    56   Cal.   4 321,  351,  444 

Jenks,  24  Cal.  11 335 

Jersey.  18  Cal.  .3.37 217 

Jim  Ti  32  Cal.  62 

220,  302,  .308.  315,  369,  405 

Jocelyn,    29   Cal.    .562. 

312.  321,  323,  455 

Jochinsky,  106  Cal.  638 

46,  102,  105,  301 

Johnson,  30  Cal.  102 49,  460 

Johnson.  41  Cal.  4.52 369 

Johnson,  47  Cal.  122 316,  470 

John.son,  .57  Cal.  .571 3.50,  356 

Johnson,  61  Cal.  142 382,  415 

Johnson,  71  Cal.  300 

13R.  218,  2^5,  303,  446,  458 

Johnson,   88  Cal.   175 

53,  58,  446,  448,  469 

Johnson,  91   Cal.   270 

155.  219,  383,  466 

Johnson,  104  Cal.  418 3.33,  403 

Johnson,  106  Cal.  2S9 

36.  91,  251,  234,  476 

Johnson,  131  Cal.  511 I 

35,  86,  230,  255 

Johnston,  48  Cal.  549 311 

Jones,  31  Cal.  565 

369,  ,374,  381,  398 

Jones,  32  Cal.  80 370,  405 

Jones,  53  Cal.  .58 263 

Jones.  63  Cal.  168.  .40,  204,  206,  423 

Jones,  123  Cal.  65 

240.  243,  310,  373,  374,  396,  404, 
476. 

Jordan,  63  Cal.  219 63 

.Jordan.  65  Cal.   644 .316,  460 

Jordan,   66   Cal.   10 153,  157,  465 

Joselyn.   SO  Cal.  .544 49 

Josephs,  7  Cal.   129 SSH 

Josselyn,  39  Cal.  ,393 74 

Juarez.   28  Cnl.   .380 216,  414 

Jung  Qung  Sing,  70  Cal.  469.. 

57,  58,  445 

Kaiser.   119   Cal.    456 

210.  211.  218.  251.  303,  410,  472 

Kalkman,    72    Cal.    212 

353,  373,  382 

Kalloch.    60    Cal     116 98 

Kamaunu,  110  Cal.  609 

_  51,  206,  374,  394 

Kearney.  43  Cal.  .383 416 

Keef er,  18  Cal.  6.36. 

35,  86,  181,  390 

Keefer,  65  Cal.  2.32 

42,  64,  178,  265,  414 


People  v.— 

Keeley,  81  Cal.  210 

303,  304,  415,  472,  474 

Keenan,    13   Cal.   .581 57 

Kehoe,  123  Cal.  224 268 

Keil,  85  Cal.   310 284 

Keith,   50   Cal.   1.37 360,  372,  375 

Kelley,  47  Cal.  125 386 

Kelly,   6  CaK  210 302,  306 

Kelly,  28  Cal.  424 221,  363,  411 

Kelly,    38   Cal.    145 241 

Kelly,    46    Cal.    3.56 343,467 

Kelly,    59   Cal.    372 244 

Kelly,   120   Cal.   273 446,  470 

Kelly,   132   Cal.   430 218,  220 

Kennedy,    55    Cal.    201 102 

Kern.    61    Cal.    244 195 

Kernaghan,   72  Cal.  609 389,  408 

Kerraghan,  72  Cal.  609 

39,  175,  176,  180 

Kerrlck,    52    Cal.    447 363 

Kerrigan,  73  Cal.  222 39,     54 

Ketchum,  73  Cal.  635 

45,  203,  378,  476 

Keyser,  53  Cal.  183 458,  466 

Kilvington,    104    Cal.    86 

183,  261,  290,  402 

Kindleberger,    100   Cal.    367 396 

King,   27   Cal.   507 

176,    178,    204,   206,   207,    208,    338, 
405,   415,   423,   470. 

King,    28   Cal.   262 

296.   312,  313,   317,  447 

King,  C4  Cal.  838 59,  440 

King,    125   Cal.   369 303 

Kiusey,   51   Cal.    278 440 

Kloss,   115   Cal.    367 

38.  204,  344,  412;  455,  472 

Knapp,    71    Cal.    1 

174,    175,    179,   193,    388,  389 

Knott,    122    Cal.    410 ..178,391 

Knowlton.    122   Cal.    3.57 370 

Knox,   119  Cal.   73 149,  311 

Knutte,  111  Cal.  453 

456,  457,  472.  473 

Koening.   99  Cal.  574 364 

Kohle,   4   Cal.    199 334 

Kohler,  5  Cal.  72 57 

Kraker,  72  Cal.  459... 221,  366,  406 

Kramer,   117   Cal.   647 

345.  394,  397 

Kruger.  100  Cal.  523 353,  403 

Krusiek,  93  Cal.  74 

66.  268,  269,  388 

Kuches,  120  Cal.  566 

253.    234,    348,    379,  472 

Knhlman,   118  Cal.   140 116 

Kunz,    73  Cal.   313 335.  365 

Laehanais,  32  Cal.  434 .362.  412 

Lafueute.  6  Cal.  202 301,  471 

Laird,  118  Cal.   291 159,  161, 

Lamb.   17  Cal.   317 180,   181,  186 

Lambert,    120   Cal.    172 

2.30,   252.  253,  352,  3.33 

Lampson,   70  Cal.   204 322 

Lanagan,    81   Cal.   143 

190,   191,   202.  405 

Landman,  103  Cal.  581 36,    91 

Lane,    96   Cal.   596 468 

Lane,   100  Cal.   384 

196,    204,    380,  381 

Lane,  101   Cal.   518 

191,  284,  368,  377,  378,  379,  394 
Lang,  104  Cal  367. .348,  401,403,  406 

Langton,  67  Cal.  429 

174,   176,    191,  204 


TABLE  OF  CASES. 


23 


People  V  — 

♦  Langtiee,  CA  Cal.  256 347,  348 

Laplque,   120   Cal.   25 132 

Laraboe,  115  Cal.  159 38,  192 

Larson,    G8   Cal.    19 63 

Lattlmore,  86  Cal.  403.  .82,  378,  392 

Lawrence,    21    Cal.    372 

49,   200,   311,  312,  470 

Leary,  105  Cal.  497 

206,   341,   409,   416,  417 

Lee,   14  Cal.   511 467,  468 

Lee,    17   Cal.    76 

55,  200,  318,   335,  342,  443 

Lee,  40  Cal.  37 359 

Lee,  GO  Cal.  86 406 

Lee,   107   Cal.   478 296,   304,  316 

Lee,  119  Cal.  84 472 

Lee,  128  Cal.  330 162 

Lee  Ah  Chuck,  66  Cal.  662.288,  348 

Lee  Ah  Yute,  60  Cal.  96 

352.  386,  397 

Lee  Chuck,  66  Cal.  662 378 

Lee   Chuck,    74   Cal.   30 406 

Lee  Chuck,  78  Cal.  329 

329,   341,  343,   345,  3G0,   364,  393 
394.   408. 
Lee  Dick  Lung,   129  Cal.  491..  376 

Lee  Fat,  54  Cal.  527 

242,    243,    375,  379 

Lee   Fook    85   Cal.   304 391 

Lee   Gam,   69   Cal.   5.52 392,  414 

Lee   Kong,   95   Cal.   666 

34.   84,  85,  190 

Lee  Sare  Bo,  72  Cal.  623 

200,  392,  405,  406 

Lee  Wah,  71  Cal.  80 235 

Lee  Yune  Chong,  94  Cal.  386. . 

62,  65.  105,  205.  441,  444,  4.58 

Lehmann.  104  Cal.  634 95,  269 

Leith,    52    Cal.    251 42 

Lem  Deo,  132  Cal.   199 314 

Lemperle,  94  Cal.  48 

188,  190,   194,  394,  397,  414 

Lem  You,  97  Cal.  224 

56,   240,   242,  387,   400,  402 

Lenon,   79  Cal.   625 

57,   253,   381,  412,  463 

Lenox,  67  Cal.  113 55,  318 

Leonard,   103  Cal.   200 146 

Leonard,   106  Cal.  319 

132,   133,   135,   297,   298,  408 

Leong  S:ng,  77  Cal.   117 

207.  469,  470 
Leong  Quong,  60  Cal.  108.. 61,  222 
Leong   Yune   Gun,    77   Cal.    636 

455,  456 

Le    Roy,    63    Cal     614 

283.  302,  314,  369,  370 

Levine,   85  Cal.   39 191,   384,  391 

Levison,  16  Cal.  99 221,  40.5,  47(i 

Lewis,  36  Cal.  .531 40,  2Q4,  423 

L(  wis,  61  Cal.  366 103,  303 

Lewis,   64   Cal.   403 

63,  225,  319,  321,  411  440 

Lewis.    117   Cal.    191 

184,   185,   187,   188,  189 

Lewis,   124   Cal.   5.51 

173,  390,  398,  472 

Lewis,    127   Cal.   20T 156 

Lewison.   88  Cal.   260 385 

Leyba.   74   Cal.   408 87 

Ley.shon.   108  Cal.   440 

160,    164,    307,    310,    321,    322,    472 
Lightner,  49  Cal.  226.  ..50,   92,  316 

Llnu,   2.1    Cal.    150 220 

Ling   Lum,  61  Cal.   5S5 58 


People  V. — 
Llttlefleld,  5  Cal.  355.  .224,  306,  442 

Little  Pete,  123  Cal.  373 353 

Lloyd,  9  Cal.  55 208 

Lock  W.ng,  61  Cal.  381 195,  384 

Lockwood,  6  Cal.  200 207,  417 

Logan,  4  Cal.  188 323,  324,  473 

Lombard,  17  Cal.  320 197 

Long,   39   Cal.    694 178,    179,  470- 

Long,  43  Cal.  444 369,  477 

Long,    121    Cal.    494 462,465 

Lon  Yeck,  123  Cal.  246 

408,   413,  472 

Lopez,  26  Cal.  113 312 

Lopez,  59  Cal.  362 221,  379,  413 

Lopez,  90  Cal.  569 225,  300 

Louie  Foo,  112  Cal.  17 

353,  374,  375,  394,  458,  463,  465, 
475.         * 

Loui  Tung,  90  Cal.  377 

50,  193,  455,  456 

Lourintz,  114  Cal.  628 250 

Love,  19  Cal.  677 67 

Lovren,   119  Cal.   88 

265,  276,  367,  384 
Lowen,   109  Cal.   381.  .442,   471,  472 

Lowery,   70  Cal.   193 ...57,  103 

Luchetti,    119    Cal.    .508 

221.  222,  398,  407,  455 
Ludwig,  118  Cal.  .329.  .415,  417,  470 

Lum  Yit,  83  Cal.  l.'?2 

456,    457,    469.    472  473^ 

Lundin,   117   Cal.   124 

53.   160,   162,  413 

Lynch,    101    Cal.    299 

85,  186,  188,  1^ 

Lynch,   122  Cal.   501 ' 

348,  365,  379,  380 

MacKinley,  9  Cal.  250 216 

Madden,   76  Cal.   521.  .375,  401,  412 

Magallones,   15   Cal.   426. 443 

Maguire,    26   Cal.    635 303,  464 

Mahlman,  82  Cal.  585 137,  30a 

Mahoney,   77   Cal.   5.32 

326,  338,  458,  465,  475 

Main,   114  Cal.  634 105,  364,  365 

Majors,    65    Cal.    100 

42,  61.  62,   178,  195,  319,  326,  334, 
340,  367,  451,  457,  459. 

Mal.ispina,   57   Cal.   628 401 

Mallon,    103   Cal.   514.  .374,  404,  405 
Manahan,  32  Cal.   68.  .253,  297,  335 

Mann,   113   Cal.   79 34,     35 

Manners,   70  Cal.   42S 220,  441 

Manning,  18  Cal.  335 400 

Manning.   48  Cal.   335 473,  475 

March,  G  Cal.   543 

62,  174,  176,  414,  44a 

Markham,   7   Cal.   209 170,  450 

Markham,  64  Cal.  1.57 

97,  100,  303,  351,  45^ 

Marks,  72  Gal.   47 412,  4G9,  470 

Maronev,    109   Cal.    279 

319,  471,  474 

Marquis,   15  Cal.   38 205 

Marseiler,   70  Cal.   98 

204,  .303,  357,  384,  415,  476 

Mar.shall,  59  Cal.  aS6 

40,  69,  72,  197,  219,  389 

Marshall,   112  Cal.   423 

71,    190.   191,   409,  471 

Marshall,  120  Cal.  70 413 

Martin.    6   Cal.   477 467 

Martin,    32   Cal.    92 

.303,  415,  465,  471 

Martin,  47  Cal.  101 

86,  93,  208,  461,  462 


24 


CRIMINAL  LAW  AND  PROCEDURE. 


People  v.— 

Martin,   102  Cal.   558 

153,  155,  156,  219,  474 

Martinez,  66  Cal.  278 403 

Maurino.   77  Cal.   436 149 

Maurltzen,   84   Cal.   37 154 

Maxwell,  24  Cal.  14... 223,  258,  411 

Maxwell,  118  Cal.  50-54 241,  242 

Mayes,  66  Cal.   597 

251.   252,   253,    255,   375,   400,    437, 
473. 

Mayes.  US  Cal.  618 

56,    3.50.    351,    353,    357,    374,    388, 
394     395 

Mayne.   118  Cal.   517 251,  457 

McAiisLin,  43  Cal.  55 469 

MoCalla.  8  Cal.  301 331 

McCarty,  48  Cal.  557 

334,  444,  455,  458 

McCarty,   115   Cal.    255 

38,  39,  40,  192,  389 

McCarty,   117  Cal.   65 105.  3.58 

McCanlev,  1  Cal.  379.  .325,  337,  471 

McCaule.v.  45  Cal.  140 381,  456 

McConnell,  82  Cal.  620 

287,  314,  458 

McCoy,  71  Cal.  395 

317,  342,  412,  457 

McCrea,  32  Cal.  98 

374,  383,  392.  405 
McCrory.  41  Cal.  458.  .317,  318,  323 

McCxirdy,  68  Cal.  .576 

284.  285,  287,  344,  409,  456,  472 

McDermott,  8  Cal.  288 240 

McDermott.   97   Cal.   247 49,  460 

McDona...  39  Cal.  698 ,  350 

McDonnell,  47  Cal.  134 

38.  40.  298,  389,  455 

McDonnell,  80  Cal.   285 

163,  166,  307 

McDowell.   71    Cal.    194 229 

McElro.v.  116  Cal.  538 219 

McFadden,   65  Cal.  445.  .90,  92,     93 

McGarvey,   56  Cal.   327 327 

McGilvor,  67  Cal.  55 104,  378 

McGregar.    88   Cal.    141 

50,  106,  319,  417,  462.  466,  471 

McGrew,   77  Cal.  560 148 

McGnngill,  41   Cal.   429 

334,  338,  356,  .357.  .'?96 

Mclntyro.    127   Cal.    423 283,  386 

McKay,  122  Cal.  628 

196.  331,  395,  413,  414,  445 

McKellar.   53  Cal.   &'> 353 

McKenna,  81  Cal.  1.58 157,  303 

McLane.  60  Cal.  412 349,  419 

McLansrhUn.  44  Cal    439 383 

McLean,  84  Cal.  480 

360.  365.  403,  407,  412 

McMahon,   124  Cal.  435 397,  465 

McMakin,  8  Cnl.  547 81,     86 

McXahh,   79  Cal.   419 410 

McXamara.  94  Cal.  .509 

65.  3«0.  875.  383,  387,  401,  412 

McXealy,  17  Cal.  X{2 '!1 

McNnltv.  9."?  Cal.  427 

.33.  40,  r,f>.  191.  207,  389.  ;{;»9,  445 
McXnIty,  95  Pnl.   594.  .461,  463,  4.'i9 

McXiitt,   64   Cnl.   Ilfs .-JSl 

McXntt,   93    Cnl.    658 !)0,  413 

Melcndrcz.   120  Cal.   549 

181,  183,  290 

Mellon,  40  Cnl.  648 

46,  48,  223,  .'^22 

Melrane.  .'lO  Cil    «17 .'i^n 

Merkle.   89   Cnl     S2.  456 


People  v.— 

Mesa,  93  Cal.  581 * 

93,  252,  255,  256,  455 

Messersmlth,  57  Cal.  575 

40,  408,  411 

Messorsnilth.  01  Cal.  246 

375.  389.  400,  405,  406,  413.  425 

Methever,  132  Cai.  331 38,     39 

Methvln,   53  Cal.   68 351 

Meyce,  86  Cal.   393 135 

Meyer,  73  Cal.  548 .319,  320,  440 

Meyer,   75  Cal.  383 

215,  216,  356,  382 

Miles,  55  Cal.  207 178,  189 

Milhner,  122  Cal.  184 57 

Mlllgate.    5    Cal.    127 

174,  176.  3S3,  389 

Mlllan,  106  Cal.  320 

153,  156,  224,  307 

Miller,  12  Cal.  291 47,     48 

Miller,  33  Cal.  99 58,  3.56,  455 

Miller,  82  Cal.  107 109,  448 

Miller,  114  Cal.  10 318,  204 

Miller,  121  Cal.  243 176,  178 

Miller,  122  Cal.  84 

229,  230,  369,  374,  474 

Miller,  125  Cal.  44 54,  338 

Mills.   17   Cal.   276 296 

Milne,  60   v  al.   71 213,  309 

Milner.  122  Cal.  171 194?  414 

Millsaps,  .35  Cal.   48 297 

IViitchell,   55   Cal.   2.37 

221,  375.  376,  401,  406 

Mitchell,  02  Cnl.  4T= 397,  398 

Mitchell.    04    Cal.    87 55,  386 

Mitchell;  92  Cal.  .590 

36.  160,  161,  162,  164,  307,  440 

Mitchell,   94   Cal.   .5.50 

3.54.  .368.  370,  383,  384 

Mitchell,  100  Cal.  .•?2S 

203,  343.  364.  470 
IVf'tchell.  129  Cnl.  584.. 1S9,  3S2.  456 

Mlze.  80  Cal.  41 

30,  R7.  90,  91,  389,  409 

Moan,    05    Cal.    5.32 

360,  .3.<!2,  3S4.  474 

Molce.    15   Cal.    3.30 297.  298,  .323 

Molina.   126  Cal.   505 .397 

MonaRhan.   102   Cal.   229 316 

Monnhan.  ,59  Cnl.  .389 411 

Monlla.  126  Cal.  .50.1 470 

Montarlal,  12  Cal.  691 

155,  217,  218.  219 
Montolth,  73  Cnl.  7.  ...219,  30.5.  3R5 

Afontelo.  18  Cal.  38 310 

Montgomerv,  53  Cal.  576... 20.3,  335 

AToody.  69  Cal.  1.^4 318 

Moon.  65  Cnl.   .5.32 173 

Mooney,  127  Cal.  339 

30,  78,  80,     82 

Mooney.  1.32  Cfll.   16 63 

Moore,'  8  Cal.  90 

174.  178.  179.  409,  411 

Moore.  41  Cal.  238 345 

Moore.  45  Cnl.  19 364.  367 

Moore,  103  Cal.  508 

46.  lis.  301,  331,  .399,  470 

More.  68  Cnl.  500 

49.  285.  314,  .315.  461 

Mnrr^.   71  Cal.  .546 462 

Mnrlnc,  .54  Cnl.  .575 386 

Morlne.  01  Cnl.  367 

179.  188.  387,  409,  410,  433 

Merino,  85  Cal.  5ir! 

53.  216.  217.  218.  466 

Morrow,  f^   Cnl.  14:: 

204.  347.  356,  361,  362.  .36.3 
Morphy.  100  Cal.  84 154 


TABLE  OF  CASES. 


25 


People  v.— 

Mortler,  58  Cal.  262 411 

Mortimer,  46  Cal.  114 

59,  323,  340,  396 

Mortimer.  58  Cal.  267 340 

Mortou,  72  Cal.  62 102,  404 

Muhlner,   115  Cal.  306.  .64,  442,  471 

Miilkcy,  65  Cal.  501 102 

Mulling,  S3  Cal.   138 

1S7,  357,  377,  394,  475,  476 

Mnnn,  2  W.    C.    R.   748... 430 

Munn,    65    Cal.    213 

35,  36.  158,  159,  180,  181 

Murat,  45  Cal.   283 

86,  88.  89,  92,  93,  442 

Murbaok.  64  Cal.  369 

164,    181,   399,   414,    429,    445,    463, 
471. 

Murphy,  ^Q  Cal.  52 

206,  207,  209,  300,  364,  872 

Murphy,   45   Cal.    143 

196,  337,  .339,  340,  370,  446 

Murphy,    47   Cal.    103 

216,  220,  222,  398,  414,  471 

Mnrphy,   .51   Cal.   376 4,5,  1.34 

Murray.    10   Cal.    310.  .197.  208,  209 

Murray,  14  Cal.  1,59 .34,  3.5,  210 

Murray.  41  Cal.  66 349,  362,  412 

Murray,    85    Cal.    .3.50 

332.  335,  348,  455,  471 

Murray,  86  Cal.  31 

347,  401,  403,  406,  407 

Murray.   94   Cal.    217 .344,  .345 

Myers.  20  Cal.  74.  .79,  305,  .30R.  31  n 

Myers,  20  Cnl.  518 40,  174,  ,389 

Myers.  70  Pal.  .582 341,  363 

Napthalv.   105   Cal.   641 284 

Navts.  3  <~"al    106 ^79. 

Navlor.    S2   r'al     607 241 

Nearv    104  Cal.  .373 

191,  312.  361,  .369,  412,  469,  472 

Neason.   67  Tal.   22.=> 440 

Neber.    125   Cnl.    560 409 

Nell.  91  Pal.  465 123,  157,  304 

Nelson.  56  C.ni.   77 

215.  263,  267,  409.  410 

Nelson,  58  Cal.  104 

36.  104.  301,  302,  305 

Nelson.  85  Cal.  421 

265.    362,    385,   456,   471,   473,   475, 
477 
Neshitt.  102  Cal.  .^27.  .153,  1.57,  .30S 

Nf-ustadt.  82  Cal.  27.^? 450 

Newberr-'.   20  Cal.  441 42,     43 

Np^vcoTnp^,  118  Cal.  272 

17P.   187,    188.    189,    190,   340,   402, 
403. 

Ne'-CP.    S6   Tal.    ."^f>5 378 

Niohol,  34  Cal.   211 

178,    179,    1S7,    188,   204,   207,   208, 
iOfl.  423.  427. 
Nichols.  62  Cnl    622... 347.  439.  444 

Noll.  20  Cnl.  164 55,  447 

Nonelln.  90  Pnl.   333 352 

Norecea.  4.<«  Cnl.  123 201,  468 

Northpv.   77   Cal.   618 

97.    90     296.    297.    311,    312,    395. 
412.  474. 

Nnpont.    4   Cnl.   3^1 .309 

Nv   Snin    Phiinjr    94    Cal.    304.  .     64 

O'Rrlori.     64    r-ni.     ?;•> 305 

O'Brien,    R«   Cnl.    R02 

3^2.  3.-5.  356.  359.  378,  386 

O'Brien,  78  Cn'    41 

IfiS.  105.  412,  415.  4.55 

O'Brien.    8S    Psd     4«?. 

58.  265.  266.  330,  455.  468 


People  v.— 

O'Brien,   96  Cal.    171 

94,    159,    164,    303,    350,    357,    381, 
402,  403,  404. 

O'Brien,  106  Cal.  104 

65,  132,  134,  387,  473 

O'Brien,    130    Cal.    1 

66,    254,    310,    388,    389,    402,    406, 
472. 

Oiler.    66    Cal.    101 55,385 

Oldham,  111  Cal.  648 

215,  SCA,   367,  368,  407,  414 

O'Leary,  77  Cal.  30 

63,  65,  235,  316,  415,  458 

Oliveria,  127  Cal.  .376 

265,  302,  304,  331,  369,  395,  412 

Ollvie,  60  Cal.  69 466 

Olsen,    80    Cal.    122 

35,  175,  177.  178,  206,  412,  471 

Olwell,  28  Cal.  4.56 62,  458 

O'Neal,  67  Cal.  378 

347,  356,  471,  457 

O'Neil,   47   Cal.    109 116,  480 

O'Xeil,    48    Cal.    2.57 54,  256.  300 

O'Neil.   59  Cal.  259 391 

O'Xeill.  78  Cal.  388 205 

Opie.  123  Cal.  294 215,  367,  401 

Oreileus,    79   Cal.    180 61,  162 

Outeveras,  45  Cal.  26... 42 

Outeveras,  48  Cal.  19 41 

Owen.  123  Cal.  482 

39.  200,  337.  3,38.  339,  341,  470,  475 

Owens,   132  Cal.   469 192,  316 

Pacheco,   70  Cal.   473 412 

Padillla,    42   Cal.    5.35 

362.  363,  415.  458,  464,  468,  471 

Page.    116   Cal.    392 

132,  137,  296,  312,  315,  371,  39« 

Palmer.    .53    Cal.    615 146 

Pape,  66  Cal.  367 

S7.   88    92,  307,  442,  446 

Parker,   91   Cal.   91 104 

Parks.    44   Cal     105 51 

Parsons,   6  Cal.  487 209.  304 

Parton.  49  Cal.   632 369.  471 

Patrich.   118  Cal.   332 451 

Pattprson.   124  Cal.   102 

210.  303.  378.  aSO.  395.  408,  474 
Paulsen.   115  Cal.  6.  ..362,  407.  ""•o 

Payne,  8  Cal.  344.. 183,  416 

Pearne,   118  Cal.   151 

ir7,  180,  181,  204,  206,  411 

Peller,   1.32   Cal.   615 460 

Pennlman.   37  Cal  271 67 

Perazzo,    64   Cal.    106 240 

Perdue,    48   Cal.    «552 68,     69 

Perdue,  49  Cal.  425 

182,  326,  442,  444,  466 

Perez,   87   Cal.    122 

220,  305,  441,  447 

Perlnl,  94  Cal.  475 

33,  218,  257,  259 

Perlev,   2  Cal.   564 98,  143 

Perry.  65  Cal    .568 403.  413 

Peterson,    9    Cal.    314 136,225 

Phelan,    93    Cal.    Ill 103 

Phelan.    123   Cal.   .551 

193.    194,    298,   345,    384,   395,   456, 
472.  476. 

Ph'Ulps.  45  Cal.  44 462 

Phillips.  70  Cal.  61 

161.  162,  349,  405,  411 

Phlpps,  39  Cal.  326 

2A9,  301,  303,  362 

Pioettl.    124  Cal.   361 4> 

Pico,  62  Cal.  50 

38,  39,  40.  217,  219,  389,  425 


26 


CRIMWAL  LAW  AND  PROCKDURK. 


People  V  — 

Plggott,  126  Cal.  509 

22U,  225,  380,  308 

Plummer,  9  Cal.  299 326.  \'> 

I'lummop,  12  Cal    250 471 

Plyler,  121  Cal.  160 

233,  283,  323,  355,  4t)' 

Plyler,  126  Cal.  379 

330,  385,  405,  476 

Poes?l,   19   Cal.   600 224,  225,  307 

Pool,  27  Cal.  572 

177.    179,    185,    186,   195,   208,   290. 
.367,  404,  405. 

Porter,    104    Cal.    415-418 242 

Potter,  35  Cal.   114 209 

Powell.  87  Cal.  348 

188,  190,  191,  197,  198,  199,  .327,  375, 
382    308. 

Prat'her.  120  Cal.  660 

224,   307,   351,   352,    359,    360,    307. 
373. 

Pratt,  78  Cal.  .345 341,  344,  484 

Price,  17  Cal.  311 458,  465 

Price,  07  Cal.  3.50...    220,  441 

Prospero,  44  Cal    186 416,  417 

Putman,   129  Cal.   258 

321,  349,  358,  394,  405 

Qiilnry.  8  Cal.  89 321,  .32r> 

Qulnn.  127  Cal.  542 311,  41? 

Qurise.  .59  Cal.  343 307,  38.5,  386 

,Rae,    66   Cal.    423 1.55,219 

Ralna,  45  Cal.  202 381,  383 

Ramirez,  13  Cal.   173 417 

Ramirez,   56  Cal.  533 

351,    302,   304,   371,   405,   411,   414, 
417,  470,  471. 

Ramirez,   73   Cal.   4a3 200,  201 

Rancod,  112  Cal.  669 

2.50.  252.  253,  270,  303,  379,  413 

Raschke,  73  Cal.  378 

155,  217,  219,  467 

Raten,   63   Cal.   422 

179.  183,  188,  191,  201 

Ratz,   115   Cal.   132 251 

Raye,    63    Cal.    492 446 

Rodintror,    55    Cal.    290 460 

Reed.  48  Cal.  553 349 

Reed,  70  Cal.  529 02.  154 

Rellly,  106  Cal.  648 .385.  470 

Relnhart,  39  Cal.  449 350,  355 

Renfrew,  41  Cal.  .37 .^38 

Reyes.    5    Cal.    .347 336 

Reynolds,    16    Cal.    129 

333,  334,  335,  338 

Rlbolsi.  89  Cal.  492 

101,  222,  225,  257,  259,  307,  364, 
365,  390.  404. 

Rice,  73  Cal.  220 50.  2.59.  306 

Richards.  07  Cal    412.  .109,  110.  360 

Richmond.  29  Cal.  413 41.  470 

Richter.   113  Cal.  473 315 

Righetti.   06  Cal.   184 

224,  307,  407,  449 

Riley.   48  Cal.   549 447 

Riley,    65    Cal.    107.'. 

285,  333,  338,  339,  409 
Riley.  75  Cal.  98.  .264,  266,  386,  .387 

Roach,   17   C.nl.   298 190 

Roach,  48  Cal.  382 50,  51,  471 

Roach,  129  Cal.  33 250,  255 

Roberts.  6  Cal    214 

174,  176,  290.  297.  383,  402.  414 

Rohert.s,    114   Cal.   07 00,  61,  398 

Roberts,  122  Cal    377.  .353,  392,  404 

Robertson,  67   Cal    646 

187,  189,  420,  432 
Robinson,  17  Cal.  371 467.  470 


People  V  — 

Robinson,   19  Cal.   41 371 

IJobluson,   46   Cal.   94 448 

Kol)les,  29  Cal.   -i-l 223,  352 

KoI)Ie.s,  34  cal.  591 224,  372,  379 

Roblcs.  117  Cal.  GSl 241,  311 

Roderigas,  49  Cal.  H 388 

Roderigo,  49  Cal.  ll 66 

Uodgcrs,  71  Cal.  565 345 

Uodlcy.  131  Cal.  240 

239.  240,  241,  242,  243,  312,  326, 
.327,  330,  367,  368,  309,  394,  412, 
475 

Rodrlgo,    69   Cal.    601 

87.  190,  315,  388,  389 

Rodriguez,  10  Cal.  51 

297,  305,  334,  369,  371 

Rodundo,  44  Cal.  5.38 

221,  355,  369,  407,  439 

Roemer,    114   Cal.    51 

351,  402,  412,  472 

Rogers,  71  Cal.  565 378 

Rogers,  01  Cal.  200 

104,  303,  307,  415 

Rolfc.    61    Cal.    540 

362.  387,  401,  443,  477 

Roney.  100  Cal.  375 412 

Rose,    85   Cal.    378 169,  3S4,  388 

Ross,  65  Cal.  104 360 

Ross.  85  Cal  .383 01,  395 

Ros.s,   103   Cal.   425 243,  244,  458 

Ross,   115   Cal.    233 

349.  402,  470,  472,  476 

Rowe.  7  Cal.  183 115 

Royal.  53  Cal.  62 249 

Uoyce.  100  Cal.  173 132 

Rozplle.   78  Cal.   84 

41,  42,  58,  275,  305,  352,  355,  356 

Rushing,  130  Cal.  449 

159.  351,  362,  393,  456,  472 

Rnssell,  46  Cal.  121 333.  334 

Russell,  SI  Cal.  016 

78,  80,  303,  403,  471 

Ryan,  82  Cal.  617 318 

Ryan,    108    Cal.    581 

3.30,  348,  394,  4T2 

Salorsp.    02    Cal.    1.39 

40,  47,  134,  210,  217.  351,  474,  477 

Samario,  84  Cal.  4.<J0 

201,  316,  317,  318,  477 

Saiti  Lung,   70  Cal.  515 

169,  358,  447 

Samsels,  66  Cal.   100 

180,  340,  382,  417 

Samonset,   97   Cal.   448 

269,  352,  401,  412 

Sanchez.  24  Cal.  17 

175,    177,    178,    180,    181.    1S2.    200 
414. 

Sanders.  114  Cal.  210 

00.    1(,1.    321.    356,    363,    309,    378, 
381.  388,  390. 

Sanford,    43    Cal.    .35 

202,  207,  3.3.8,  .340,  416,  417,  474 

Sansome.  98  Cal    239 

103,    105,    206,    286,    319,    342,    396, 
402,  45.«<,  459.  469. 

Savercool,  81  Cal.  651 

87,  303,  304,  442 

Saviors,   14   Cal.   29 303,  305 

Scheil.   123   Cal.   360 475 

SchcnicK,  65  Cal.  620 350 

Schmidt,   0>3   Cal.   28 ...92,  208 

i«chmidt.  64  Cal.  260.... 62,  64.  314 

Schraitt,    106   Cal.   48 

40,  389,  390,  412 
Schoedde,    126   Cal.    373 392,  405 


TABLE  OF  CASES. 


27 


People  v.— 

Scbuartz,    32    Cal.    161 79,     81 

Schwartz,    32   Cal,   161 79,     81 

Scott,  32  Cat.  200 79,  81 

Scott,  09  Cal.  341 317,  318 

Scott,  69  Cal.  69 189 

Scott,  74  Cal.  94 

46,  103,  134,  223,  301 

Scott,  93  Cal.  516.... 90,  92 

Scott,  121  Cal.  101 472 

Scott,  123  Cal.  430 187,  188,  339 

•  Scogglns,  37  Cal.  675 

180,  198,  199,  333,  377,  433 

Searcoy,  121  Cal.  i 

55,  332,  335,  394,  395 

Sears,  18  Cal.  035 413,  417 

Sears,  119  Cal.  271 

103,  349,  850,  379,  394,  472,  476 

Sehorn,  116  Cal.  1.09 

197,  284,  285,  286,  297,  315,  330, 
331,  332,  33.,  340,  356,  385,  475 

Sepulveila,  59  Cal.  343 442 

Sexton,  132  Cal.  37. 143,  316 

Shaber,  3%   Cal.  38 

101,  103,  208,  209,  305 

Shainwold,  51  Cal.  463 

81,  82,  378.  455,  476 

Shattuok,    109   Cal.   673 

347,  402,  474 

Sliatighnessy,    110   Cal.    602 

155,  109,  170,  217,  219,  384,  411 

Shaver  120  Cal.  354 353,  383 

Shaw,  111  Cal.  171 

348,  376,  471,  475 

Shea,  125  Cal.  151 254 

Shear.  7  Cal.  140 49 

Sheldon,   68   Cal.    436 

35,  140.  301,  303,  415 
Shem    Ah    Fook,    64   Cal.    380. . 

318,  475 

Shepardson,    48   Cal.    189 

257,  381,  383 

Shot  well,  27  Cal.  394 

60,  160,  308,  309 

Shurbrick,  57  Cal.  565 285,  465 

Shuler,  28  Cal.  490 

263,  204,  303,  320,  327,  362,  417 

Shuttuck,    109   Cal.   673 199 

Sierp,  110  Cal.  249 

61.  200,  243,  385,  3S6 

Silva,   121  Cal.  668 

349,  3.50,  3.51,  398,  410,  413 
Simmons,  110  Cal.  1...297,  314,  461 

Simons,   60   Cal.   72 187 

Simonsen,   107  Cal.  345 

156.  369,  373 

Simpson.  50  Cal,   304 79,  82,  472 

Simpton,   133  Cal.   307 245 

Sine  Lum,  01  Cal.  5^5 457,  404 

Skidraore,   123  Cal    207 1.54 

Slater,    119    Cal.    620 72,  271 

Smalling,  94  Cal.  119 

00,  64,  371,  372,  439,  458 

Smallnian,   55    Cal.    185 

217,  300,  472 

Smith,    1    Cal.    9 28.3,  288,  483 

Smith,    15   Cal.   409 216,  224,  309' 

Smith,    23   Cal.   280 218 

Smith.   20   Cal.   000 195 

Smith,   .50   Cal.   002 382 

Smith,    .57    Cal.    130 415,  470 

Smith.   59   Cal.   365 

40,  284.  383,  389,  411,  458 

Smith,    86  Cal.    238 

102,  103,  104,  301,  302,  308 
Smith,  93  Cal.  445 194,  471 


People    v.— 

Smith,  98  Cal.  218 364,  36& 

Smith,   103   Cal.   567 

161,    103,    164,    302,    305,   372,   440, 

Smitii,    105    Cal.    676 414,471 

Smith,   100  Cal.    82 

203,  362,  378,  381,  385 
Smith,    112    Cal.    333.  .219,  222,  307 

Smith,  121  Cal.  .362 

50,  60,  62,  394,  397,  457,  474,  475 
Snyder,    75    Cal.    323.  .249,  252,  308 

Soap,    127   Cal.   408 344,  455,  472 

Soto,   49  Cal.   67 219,372 

Soto,  53  Cal.   415 102 

Soto,   59   Cal.   368 407,  408 

Soto,   05   Cai.    021 58,     61 

Soto,  63  Cal.  165.  .204,  208,  209,  381 

Southern,    120    Cal.    645 203,  475 

Southwell,   46   Cal.    154 

297,  298,  299,  314 
Sprague,   53   Cal.   491 

54,  344,  407,  408,  418,  467,  468 

Sprague,  54     Cai.   92 461 

Sprague  57  Cal.   147 460 

Squires,    99   Cal.   327 97,  100 

Stacey,  34  Cal.  307 

298,  312,  313,  461 
Staken,    40    Cal.    599 

51,  223,  257,  259,  364 

Stanford,    64    Cal.    27 

223,  224,  307,  456 

Stanley,    47    Cal.    118 

59,  63,  364,  409,  471 

Stanton,    39    Cal.    098 106,208 

Stanton,    106    Cai.    139 

84.    90,  275,  401,  405,  407 

Staples,  91  Cal.  27 

45,    46,     53,    219,    223,    283,    286, 
287,  288. 

St.  Clair,  38  Cal.  137 104 

St.  Clair,  56  Cal.  406 224 

Stephens,  79  Cal.  429 61 

Sternberg,   111  Cal.  3 

123,  355,  365,  300,  369,  40.3 

Sternberg,  127  Cal.  510 

404,  400,  407 

Stevens,  68  Cal.  113 367,  368 

Steventon,  9  Cal.  273 174,  207 

Stewart,  7  Cal.  141 331,  340 

Stewart,  28  Cal.  396 197 

Stewart,  04   Cal.   00 318,  3^5 

Stewart,    80   Cal.    129 217 

Stewart,   85   Cal.    174.  .249,  250,  381 

Stewart.    90    Cal.    212 252,255 

Stewart,    97    Cal.    241 -.252,  255 

Stickman,    34    Cal.    242 101 

Stiilman.    7    Cal     118 462 

Stites,   75  Cal.  576 34,     35 

Stokes,   71   Cal.   265 95,  387 

Stoke.s,  102  Cal.  501 461 

Stokes,  103  Cal.  199 

63,  342,  343,  345 

Stone,    16    Cal.    369 216,402 

Stone,  82  Cal.  .36 184 

Stoneeifer.    6    Cai.    410 

170,  195,  338,  .341,  389,  465,  476 

Storke,  128  Cal.   486 400 

Strassman,    112    Cal.    683 

66,  222,  241,  387,  388 

Streuber,  121  Cal.  431 

66,  383,  388,  404,  405 

Strong.  .30  Cal.  151 

362.  308,  372,  400,  404,  405,  408, 
412. 


28 


CKIMINAT.  LAW  AND  PROCEDURE. 


People    v.— 

Strong,    46  Cal.    303 

224,  376,  398,  415,  421,  470 

Stuart,  4  Cal.   218 58,  333 

Suesser  132  Cal.   631 

54,  192,  325,  338 

Sullivan,    129    Cal.    557 

345,  361,  400 

Sutton,  73  Cal.  243 456 

Swafford,   65  Cal.   223 54 

Swalm,   80   Cal.   46 

217,  220,  225,  412,  472 

Swenson,  49  Cal.  388 

93,  196,  220,  315 

Symonds,  22  Cal.  349 

312,  323,  337,  343^  344 

Taggart,   43  Cal.   81 308 

Taing,  53  Cal.  602 198,  338 

Tallmadge,    114   Cal.    427 456 

Tamkin,    62   Cal.   468.. 186,  198,  429 

Tapia.  131  Cal.  647 

373,  401,  404,  463 

Tarbox,    115    Cal.    60 

54,    251,    284,    285,    364,    369,    372, 
373 

Tarni   Pol,   86  Cal.   231 

191,  342,  345,  471 

Tarpey,   59  Cal.   371 265 

Taylor,  36  Cal.  266 

35,  36,  405,  410,  414 

Taylor,    59    Cal.    649 

198,  200,  201,  202,  370 

Taylor,    119   Cal.    113 305 

Teeherow,  40  Cal.  286 415,  471 

Telxerla,    123    Cal.    297 

184,  380,  476 

Terrill.   127  Cal.   99 158,  311 

Terrill,    132   Cal.    499... 61,  164,  464 

Thomas,    63   Cal.    482 303 

Thomas,  110  Cal.  43 319 

Thompson,    4    Cal.    239 

57,  304,  322,  446 

Thompson,    28    Cal.    215 

309,  387,  415 

Thompson,   29  Cal.   215 309 

Thompson,    34   Cal.   671 216 

Thompson,   50   Cal.   480 365 

Thompson,   84   Cal.   598 

284,  286,  343,  369,  386 

Thompson,   111   Cal.   252 

276,  307,  309,  310 

Thompson,  115  Cal.  160 

276,  404,  461 

Thomson,    92    Cal.    512 

195.  198,  348.  401,  408,  411 

Thornton,    74    Cal.    488 

342,  343,  455 

Thrall,    50   Cal.   415 369,  374 

Thurston,   5   Cal.   69 298 

Tierney.  67  Cal.  55 252 

Tlley,    84    Cal.    651 348,  353,  354 

Tinder,   19   Cal.   539 66,  68,  296 

Tipton,    73   Cal.   405... 344,  404,  460 
Titherlngton.   59   Cal.   598.  .221,  401 

Toal,  85  Cal.  333. 48 

Tock   Shew,  6  Cal.  637 396 

Todd,    77    Cal.    466 

112,  160,  163,  1&4 

Tomllnson,  .So  Cal.  503 

158.  159,  163,  307,  310 

Tomlinson,   66  Cal.   344 

133,  209,  303,  409 

Tomlinson.   102  Cal    19 

155.  164.  215.  219.  222,  225,  378 
Tom   Nop.   124   Cal.   150 171,  450 


People    v.— 

Tonielli,   81   Cal.   279 

61,  144,  469,  470 

Torres,  38  Cal.  143 

90,  415,  464,  470,  471 

Townsley,   39   Cal.   405 219 

Travers,   56   Cal.   254 186 

Travers,    73    Cal.    580.. 62,  205,  441 

Travers,    77   Cal.    178 62 

Travers,   88   Cal.   233 

40,    41,    298,    323,    314,    363,    389, 
401,    404.    405. 

Travis,    56    Cal.    251 198 

Treadwell,  69   Cal.   226 

132,    133,    135,   323,   397,    407,   408, 
411,    412. 

Trim,    37    Cal.    275 

56,  415,  416,  447,  468 

Trim,   39   Cal.    75 367,368 

Tucker,    104    Cal.    443 378 ' 

Tucker,    115   Cal.   338 

65,  317,  440,  471 

Tucker,  117  Cal.  229.. 62,  345 

Tupper,  122  Cal.  424. 58 

Turcott,    65    Cal.    129 

188,  190,  398,  409,  413,  477 
Turlev,    50    Cal.    469.  .181,  414,  429 

Turnbull,  93  Cal.  630 98 

Turner,    1    Cal.    152 114,115 

Turner,    39    Cal.    370 

298,  313,  343,  345,  454 

Turner,    65    Cal.    540 

87,  93,  303,  352,  415,  442 

Turner,    85    Cal.    432 311 

Turner,   113   Cal.   278.  .159,  160,  163 

Turner,    122   Cal.   679 

239,  243,  244,  303 

Tyler,   35   Cal.   553 256,  351 

Tyler,    36   Cal.    522 

253,  254,  372,  380,  381,  396 

Un    Dong,    106    Cal.    83 

350.  356,  394,  403,  472 

Urias,    12    Cal     326 92 

Urquidas,   96   Cal.   239 

105,  225,  363,  455,  456 

Uwahah,   61  Cal.   142 371 

Valencia,  43  Cal.  555 

178.  179,  308,  411 

Valencia,    45    Cal.    304 468 

Vallarino,  66  Cal.  229 303 

Valllere,    123    Cal.    576 

87,  91,  356,  379 

Valllere,    127    Cal.    65 381,394 

Vanard,   6  Cal.   563.  .87.  92,  93,  310 

Van   Ewan,    111    Cal.   1.52 

133,   347,    348,    360,    378,    401,   403, 
406,  407. 

Vance,   21   Cal.   400 

208.  .332,  333,  406,  472 

Van  Horn,  119  Cal.  323 

203,    286,    314,   335,   341,   367,   369, 
.390,   412.   476. 

Vann,  129  Cal.  118 

249,  250,  308,  393 
Varnum,  .53  Cal.  630.  ..62,  412,  463 

Vasalo,   120   Cal.    168 

53,  80,  82,  283 

Vasouez,  49  Cal.  560 

42,  178,  338,  403 

Velarde,    59    Cal.    461 

46.  221.  266,  368.  370,  382,  411 

Vcrdegreen,   106  Cal.   211 250 

VerenespneckockockhofT.         129 

Cal.  497    192.  363,  389 

Vernon,  35  Cal.  49.... 196,  200,  202 


TABLE  OF  CASK?. 


2^ 


People    v.— 

Vice,  21   Cal.  344 264 

Vlok,    7    Cal.    165 49 

Vidal,    121    Cal.    221... 221,  380,  381 

Vierra,  52  Cal.  451 88 

Vlerra,  67  Cal.  234 288 

Vllarde,  59  Cal.  463 220 

Villarino,   66   Cal.   230 

87,    88,    305,    307,    313,    315,    318, 

442. 

Vincent,   95   Cal.    428 

60.  103,  204,  326,  331 

VIsher,  96  Cal.   314 442 

Voll,   43  Cal.   167 455 

Von,    78   Cal.    1 319,469 

Von  Tledeman,  120  Cal.  128. . . 

35,  239,  435 
Wade,  118  Cal.  672... 269,  321,  322 

Walte,   102   Cal.   251 241 

Walbridge.    123   Cal.    273... 264,  266 

Walden,    .51    Cal.    588 406 

Walker,     132    Cal.     141 445 

Wallace,    9    Cal.    31... 207,  208,  304 
Wallace,  89  Cal.   159 

347,    348,   354,    381,   382,   401,   476, 

477. 
Wallace,  94  Cal.  497.  .225,  284,  465 

Wallace,   101  Cal.   28i 

90,  91,  331,  332,  403 

Wallace,   107  Cal.   137 415 

Wallace,    109   Cal.    611 269,  412 

Walsh,    43    Cal.    447... 185,  338,  414 

Walters,  98  Cal.  138 

192,  378,  398,  412 
War,  20  Cal.  117.  .33.  89.  301,  460 
Ward,  decided  Oct.  13,  1901.. 

350,  463 

Ward,  77  Cal.  113 335,  339,  366 

Ward.  105  Cal.  653 

38.  39.  40,  55,  223,  257,  258,  287, 

334,  348,  362,  386,  387,  389,  394, 

395.  411. 

Ward,  110  Cal.  373 98,  303 

Warner.  117  Cal.  639 356,  377 

Warren.  39  Cal.  661 365 

Warren,  130  Cal.  6S3 

42,  221,  224,  324,  456 

Wasservople,   77  Cal.  175 153 

Wasson.   65   Cal.    539.  .202,  348,  3.59 

Watson.    72    Cal.    402 222 

Watson.    125    Cal.    342 91,     92 

Way,    10   Cal.    336 160 

Weaver,   47   Cal.    106 

207,  308.  322,  465 

Webb.    38    Cal.    467 60,64,462 

Webb,   70   Cal.    121 3.53 

Webber,    133    Cal.    23 46 

Webster,  89  Cal.  574.  .351,  360,  381 

Webster,    111    Cal.    384 

250,  251,  401,  406 

Well,    40    Cal.    268 334,337 

Weir.   120   Cal.   279..    .■.' 154 

Welch,   49  Cal.   182 

206.   331,    332,   337,    340,   406,   409, 

442. 

Welch,   63  Cal.  168 364 

Wells.  100  Cal.  4.59..! 

.54.    337,    338,    339,    350,    394,    395, 

397. 

Wells.  103  Cal.  631 242 

Welsh,   63  Cal.   167 

347,  375,  376,  377 
Wessel,  98  Cal.   352... 2.54,  310,  457 

West,  49  Cal.  610 191 

West.  73  Cal.  .346.  .92,  345,  442,  443 
West,  106  Cal.  89 377 


People    V. — 

Wcstlake,    62    Cal.    303 

186.  188,  197,  202,  349,  414,  474- 

Westlake,   124   Cal.  452 

133,  356,  409 

Wheatley,    88   Cal.    114 

283,  319,  343,  440,  447,  470 

Wheeler,    60   Cal.   590 370,  398 

Wheeler,    65    Cal.    77 

287,  329,  356,  397 

Wheeler,    73   Cal.   252 284,  288 

Whelan,  117  Cal.  559 

63,  296,  365,  402 

White,   34   Cal.   183 

33,  209,  303,  466,  467 

White,    116   Cal.    17 105,411 

Whltely,   64   Cal.   211 441 

Whlteman,    114    Cal.    338 

162,  380,  382 

Whitney,    53    Cal.    420 415 

Wickham,  113  Cal.   283 285 

Wlckham,   116  Cal.  384 62,  136 

Wieger,   100  Cal.  352 

154,  156,  370,  372 

Wlllard,    92   Cal.    482 

61,  65,  381,  390,  401 

Williams,   6   Cal.    20T 337 

Williams,    17   Cal.    142 

338,  377,  405,  406,  410,  417 

Williams,  18  Cal.  187 365,  471 

Williams,   24   Cal.    31 

321,  322,  328,  345 

Williams,    32    Cal.    280 

185,  189,  399,  410.  412,  413,  414 

Williams,    35    Cal.    671 215,311 

Williams  43  Cal.   349 

40.    178,    179,    204,    322,    332.    333, 
397,  414.  423. 

Williams,   45   Cal.   25 469- 

Williams,  59  Cal.  398 

68,  118,  401,  406 

Williams,    60    Cal.    1 131 

Williams,  73  Cal.  534 179,  406 

Williams.    75    Cal.    306 470 

Williams,    84    Cal.    616 469 

Williams,   127   Cal.   212 

143,  380,  477 

Williams.    133    Cal.    165 254 

Wilson,  9  Cal.  260 88,  93,  442 

Wilson.    49    Cal.    14 40,389 

Wilson,    57   Cal.   575 389 

Wilson,    66   Cal.    370 375,  474 

Wilson.   93   Cal.   379 284 

Wilson,   117  Cal.   688.... 91.  92,  378 
Wilson,   119  Cal.   384.  .118,  443,  472 

Winkler.    9    Cal.    236 136,307 

Winters,    29    Cal.    6.59 103,  46» 

Winters,  93  Cal.  282.  .402,  409,  471 

Winters,  125  Cal.  325 

203.  321,  367,  404 

Wlnthrop,    118    Cal.    85 

65.    263,    266,    334,    345,    376.    387, 
412. 

Wong  Ah   Foo.  69  Cal.  180 

199,  348.  392.  405.  455 
Wong  Ah  Leong,  99  Cal.  440. . 

91    356' 
Wong  Ah  Ngow,  54  Cal.   153. .' 

364,  375.  406,  408 
Wong   Ah   Teak,   63   Cal.   544..  187 

Wong  Ah  Yon.  67  Cal.  31 472' 

Wonk  Ark,  96  Cal.  128 

196,  325,  335.  337.  380 
Wong  Chong  Suey,  110  Cal.  117 

222    478^ 
Wong  Chuey,  117  Cal.  629....' 


30 


CRIMINAL  LAW  AND  PROCEDURE. 


People   v.— 

194,   202,    348,   356,    366,    376,   383, 
394,  395,  474.  476. 

Wong  Sam,  117  Cal.  30 159 

Wong  Wang.  92  Cal.  277 300 

W'oods,  43  Cal.  177 

49.  63,  337,  446,  469 

Woodward,  45  Cal.  293 42 

Woodv,  45  Cal.  289 178,  367 

Woody,   48   Cal.   81 265 

Woolev,   44  Cal.   494 79 

Wood  Tuck  Wo,  120  Cal.  295.. 

384,  394,  456,  467,  474 

Woostcr,   16  Cal.  435 316 

Woppner,    14    Cal.    438 416,467 

Worden,  113  Cal.  569 

194,  400,  403,  409,  415 

Worthington,    105   Cal.    166 

354    359 
Worthington,    115   Cal.    244....' 

203,  401,  405 

Worthington,    122  Cal.    586 

188,  414 

Wreden,   59   Cal.   395 

40,  369,  389,  411 

Wright,    45   Cal.    260 186,  417 

Wright,  93  Cal.  564 34,  233,  400 

Wrinliler,   9   Cal.   234 224 

W.vman,    15   Cal.    70... 196,  344,  372 

Wvman,    102    Cal     552 131,132 

Ybarra,  17  Cal.  160 

200,  207,  209,  406,  471 
Yeaton,  75  Cal.  415.  .330,  356,  369 
Yee   Fools  Din.   106  Cal.   103.. 

91,  474 

Ye  Park,  62  Cal.  204 

91,  188,  189,  408,  432 

Yoakum,   53   Cal.   .506 325 

Yokum,   118   Cal.   440 

190,  194.  200,  201,  395,  476 

Yorke,    9    Cal.    421 471 

Young,   31   CaL   564 291,  461 

Young,   64  Cal.   312 284 

Young,  65   Cal.   225 101 

Young,   102  Cal.   411 371 

Young,  108  Cal.  13 

56.  323.  330,  332,  340,  374 

Yslas.   27   Cal.   &S1 84,  351 

Yut    Ling.    74    Cal.    569 58 


People   v.— 

Zimmerman,   65   Cal.   307 365 

Perkins  v.   Eckert,  55  Cai.  405..  414 
Reclamation    District    v.    Hamil- 
ton,  112  Cal.   607 465 

Reld  V.   Reid,   73  Cal.  207 3S6 

Ruggles    V.    Superior    Court,    103 

Cal.  128  114 

Run.von,  v.  State,  57  Ind.  84 432 

Sanchez  v.  Newman,  70  Cal.  210  116 
San  Diego  Co.  v.  Neale,  78  Cal. 

77   385 

Sa.vers  v.  Superior  Court,  84  Cal 

045    113,  116 

Schwarz   v.    Superior   Court,   111 

Cal.    106 Ill,  115 

Sharon  v.   Sharon,  79  Cal.  673.. 

95,  350,  465 
Spencer    v.    Branham,    109    Cal. 

340   454 

Spottiswood  V.  Weir,  80  Cal.  451  477 
Sprague  v.  Pawcett.  53  Cal.  409  468 
State  V.  Partlow,  JJO  Mo.  608. .  432 
State  V.  Underwood,  37  Mo.  225  432 
Stewart  v.  State,  1  Ohio  st.  66. .  432 

Tate   V.    State,   46   Ga.    151 432 

Tavlor  v.  Reynolds.  92  Cal.  577  55 
Terrill  v.  Superior  Court,  60  Pac. 

Reporter,    516 312 

Thomas  v.  Gates,  126  Cal.  1 408 

Tomsky    r.    Superior    Court,    131 

Cal.  623   113 

Tyler  v.    Connolly,   65   Cal.   30. . 

115,  116 
Ware   v.   Robinson,  9  Cal.   111.. 

116,  480 

White  V.  Disher,  67  Cal.  403 407 

White    V.     Superior    Court,     110 

Cai.    66    50,111,116,481 

W'flite  V.  White,  82  Cal.  449 

66,  76,  95 
Wlggin    V.     Superior    Court,    68 

Cal.  400   112 

Av.ilard  v.  Archer,  63  Cai.  34 443 

Willard    v.    Superior    Court,    82 

Cal.   460   55,  321.  358,  386 

Woods  V.  Varnum,  85  Cal.  639. .  237 
W'orks    T.     Superior    Court,    130 

Cal.  304   112 


TABLB  OK  COI3KS  CITKD. 


Penal  Code— 
7  97,  418 

20  as.  418 

21  37.  418.  429 

22  .36,  40.  423 

26  .37.  41 

27  44.  205 

.31  42 

53  99 

57  99 

67  99 

68  95 

85  99 

92  99 

93  99 

118  239 

120  2.39 

122  240 

123  241,  435 

127  243 

132  241 

1.37  99 

138  99,  241 


Penal  Code — 

148  2.59 

153  107 

165  99 

166 Ill 

182  109.  366 

184  366 

187  425 

188  425 

1.S9 426 

190  205,  206 

192  426 

ia3  206 

195  182 

196  183 

197  183.  4.30 

198  431 

207  212 

208  213 

209  213 

211  263 

213  263.  266 

237  148 


TABLE  OF  CODES.  31 

reual  Code—                 /  Penal  Coilo— 

240  84     800  47 

242  8C    801  47 

248  228    802  47 

250  228    812  289 

251  229,  400    813  28.') 

252  229     815  290 

253  229    81«  289 

254 229    834  290 

255  229    858  291 

256  229     859  291 

261  249    8fi0  292 

265  71     861  292 

266  270    862  292 

267  71     863  292 

268  268    864  292 

274  ■ 74     865  292 

275  74    8G6  292 

278  213    867  293 

281  94     868  293 

282  94     869  283 

330  168    871  293 

332  168     872  293 

403  121     873  293 

404  121     875  -. .  .  294 

406  121     876  294 

407  121     877  294 

411  121    879  358 

412  121     880  358 

415  121     882  359 

417  121     895  299 

420  121     896  299 

448  78     948  300 

450  103    949  300 

453  80    950  300 

454  80    959  208,  300 

459  101     964  230 

460  101     967  224 

463  103    976  313 

470  158    977  57 

487  219    988  313 

489  226    995  216,  314 

490  226    999  63 

496 257     1002  315 

503  131    1003  315 

513  132     1008  63 

519  143    1011  52,  317,  44'5 

523  143    1016  316 

528  149     1017  316 

529  149    1019  317 

548  78     1024  317 

602  278    1033  325,  S27 

650  143     1043  57 

660  143    1073  337 

686  52,  54    1074  339 

687  60    1093  319 

688  355     1096  422 

689  52,  445     1102  422 

772  1:37    1105  191,  389,  430 

777  44     1122  341 

778  45     1127  ' 416,  417 

780  45    1138  413 

781 46     1147  57,  439 

782  , 46    1149  439 

783  46,  300,  301     1150  440 

784  ■ 46     1151  440 

785  46     11.52  441 

786  46     1153  441 

787  46     1154  441 

789  45     11.57  441 

790  47    11.58  440 

791  47     1161 443 

792  47     1162  444 

793  47    1163  439 

794  47     1164  439 

799 47    1170  33P 


32  CRIMINAL  LAW  AND  PROCBDURE. 

Penal  Code—  Penal   Code — 

1174    465  1368   891 

1175    466,  467  1382    68 

1179   454  Co<le    of    Civil    Procedure— 

1180  458    76  49 

1181  343,  455     74  29ii 

1182  454     170  286,  827 

1185  458    1823  861 

1192  317     1824  ; 861 

1194  '. 57    1826  861.422 

1200  445    1845 888 

1235 460    1847 347,  419 

1237  461     1878  346 

1238  461,  46*2    1879  346,  847 

1243  468    1880  846 

1255  57    1963  35,847 

1259  461    2043  : 858 

1272  68    2044  359 

1274  68    2045  359 

l;>95  292    2049 384 

1297  292    2051  349,  419 

1322 347    2052  351,  853 

1323  356,  396    2061  347,  354,  369,  408,  418 

1367  390 


CHAPTER  I. 


CRIMBS  AND  PUBLIC  OFKBNSES. 


DEFINED. 

In  this  state  the  terms  "crime"  and  "offense"  are  gen- 
eric names,  and  are  used  synonymously,  while  "felony" 
and  "misdemeanor"  are  specific,  each  defining  a  partic- 
ular class  or  kind  of  offense.  A  crime  or  public  offense 
is  an  act  committed  or  omitted  in  violation  of  a  law  for- 
bidding or  commanding  it,  and  to  which  is  annexed  a 
punishment  ;^  both  definition  and  penalty  are  necessary  to 
declare  a'crime.^  Common  law  crimes  are  not  recognized, 
and  constructive  crimes  are  contrary  to  the  spirit  and  let- 
ter of  our  law.  Inference,  implication  and  strained  inter- 
pretation of  courts  cannot  make  criminal  any  act  not  so 
proclaimed  by  written  law.^  A  felony  is  a  crime  punish- 
able with  death  or  by  imprisonment  in  the  state  prison. 
A  crime  for  which  such  penalties  cannot  be  inflicted  under 
any  circumstance  is  a  misdemeanor.  When  crime  may  be 
either  a  felony  or  a  misdemeanor,  according  to  the  pun- 
ishment imposed  by  the  court,  it  is  deemed  a  felony  until 
judgment  imposing  a  penalty  which  makes  it  a  misde- 
meanor.* The  common  law  distinction  between  a  high 
and  low  misdemeanor,  depending  on  whether  or  not  the 
offense  was  infamous,  has  never  been  recognized  in  Cali- 
fornia.'* 

ESSENTIALS    OF    CRIME. 

To  constitute  a  crime  there  must  be  a  union  or  joint 
operation   of  act  and   intent   or   criminal   negligence.^     In 

1  Penal  Code  15. 

2  People  V.  McNulty.  93  Cal.  439. 

3  Ex  parte  McNulty,  77  Cal.  168. 

i  People  V.  War,   20   Cal.   120;    People  v.    Perini,    94   Cal. 
573. 

5  Green  v.  Superior  Court,  78  Cal.  563. 

6  Penal  Code    20;  People  v.  White,  34  Cal.  187. 


:rimes--3 


34  CRIMINAL  LAW  AND  PROCEDURE. 

murder  there  is  the  additional  element  of  malice  afore- 
thought.^ The  law  does  not  take  cognizance  of  criminal 
intentions,*  unless  accompanied  by  an  actual  attempt  to 
carry  out  the  evil  design."  Thus,  a  person  may  purchase 
and  load  a  gun  with  the  declared  intention  to  shoot  another, 
but  until  he  makes  an  attempt  to  use  the  weapon  upon  the 
person  of  his  intended  victim,  there  is  no  crime.  But  as 
soon  as  he  does  anything,  however,  in  pursuance  of  that 
design  he  puts  himself  within  the  grasp  of  the  law.^" 

CRIMINAL    ATTEMPT. 

While  a  mere  intention  is  not  punishable,  an  attempt  is. 
The  law  draws  a  distinction  between  preparation  to  com- 
mit an  offense  which  merely  shows  intention  and  the 
actual  attempt  which  completes  the  crime.  An  attempt  is 
an  act  tending  towards  the  accomplishment  and  done  in 
part  execution  of  a  design  to  commit  a  crime,  exceeding 
an  intent,  but  falling  short  of  an  execution  of  it."  It  is 
something  more  than  mere  preparation.  Preparation  con- 
sists in  devising  or  arranging  the  means  or  measures  nec- 
essary for  the  commission  of  the  offense ;  but  the  attempt 
is  the  direct  step  towards  its  actual  commission,  after 
preparations  are  made.  The  attempt  can  be  manifested 
only  by  acts  which  will  end  in  the  consummation  of  the 
offense,  but  for  the  intervention  of  circumstances  inde- 
pendent of  the  will  of  the  party."  i 

ILLUSTRATIONS. 

Thus,  the  declarations  of  a  determination  to  contract 
an  incestuous  marriage,  the  elopement  for  that  avowed 
purpose,  and  a  request  of  another  to  procure  a  magistrate 
to  perform  the  ceremony,  was  held  to  be  only  preparation, 
and  not  an    attempt."     So,  also,  the    construction    of    a 

7  People  V.  Wright,  93  CaL  566. 

8  People  V.  Elliott,  90  Cal.  589. 

»  People  V.  Deyine,  59  Cal.  63;  People  v.  Harris,  29  Cal. 
681. 

10  People  V.  Murray,  14  Cal.  160. 

11  People  V.  Mann,  113  Cal.  79. 

18  People  V.  Stites,  75  Cal.  576;  People  v.  Compton,  123 
Cal.  410;  People  v.  Murray,  14  Cal.  160;  People  v.  Lee 
Kong,  95  Cal.  66,6. 

13  People  V.  Murray,  14  Cal.  160. 


CRIMES  AND  PUBLIC  0FFEJJSE8.  35 

dynamite  bomb  with  intent  to  use  it  in  destroying  the 
lives  and  property  of  others,  was  said  to  be  simply  an  act 
of  preparation ;  but  the  starting  to  the  place  of  opera- 
tions, pursuant  to  an  antecedent  arrangement  with  a  con- 
federate, amounted  to  an  overt  act  done  for  the  purpose  of 
effecting  the  crime  intended,  and  was  an  attempt.^* 
Attempting  to  pass  a  forged  instrument  is  not  consum- 
mated by  a  delivery  to  an  agent  with  the  design  that  the 
agent  shall  utter  it  until  some  overt  act  is  done  by  the 
agent  to  that  end.^^  But  the  wilful  act  accompanied  by 
criminal  intent  or  criminal  negligence  completes  the 
offense,  and  the  result  determines  its  character.^*  Here 
"  wilfull  "  means  only  a  purpose  or  willingness  to  commit 
the  act  or  make  the  omission  referred  to  in  a  definition  of 
the  offense.^'  When  the  law  expressly  declares  an  act 
or  omission  criminal,  the  intention  is  presumed  from  the 
commission  or  omission  of  the  act  forbidden  or  com- 
manded.^® But  the  intent  need  not  be  accomplished.  If 
the  attempt  is  made,  although  it  fail,  or  is  voluntarily  aban- 
doned, it  is  not  less  criminal.^® 

MALICE. 

In  most  crimes  only  a  general  intent  or  malice  is  requi- 
site. Malice  is  not  to  be  understood,  however,  in  its  com- 
mon acceptation,  as  denoting  a  general  malevolence,  or 
enmity  toward  a  particular  individual,  but  in  its  legal 
sense,  as  a  wrongful  act  done  intentionally  without  cause 
or  excuse.^"  A  wilful  violation  of  a  law  is  all  that  is 
necessary  to  show  such  an  intent. ^^  Acts  indicate  the 
intention,   and  the  law   sometimes   judges  previous   intent 

14  People  V.  Stites,  75  Cal.  576. 

15  People  V.  Compton,'  123  Cal.  410. 

16  People  V.  Olsen,  80  Cal.  127. 

17  People  V.  Von  Tiedman,  120  Cal.  135;  People  v.  Sheldon, 
68  Cal.  437. 

18  People  V.  Frick,  89  Cal.  144. 

19  People  V.  Mann,  113  Cal.  76;  People  v.  Johnson,  131  Cal. 
511. 

20  People  V.  Taylor,  36  Cal.  255;  People  v.  Ah  Toon,  68 
Cal.    362. 

21  Sub.  2,:  Sec.  1963,  C.  C.  P.;  People  v.  Munn,  65  Cal.  214; 
People  V.  Keefer,  18  Cal.  638;  People  v.  Goslan.  73  Cal. 
324. 


36  CRIMINAL  LAW  AND  PROCEDURE. 

by  subsequent  action.*^  But  the  common  law  rule  that 
the  intent  must  be  inferred  from  the  acts  and  words  no 
longer  prevails  since  a  defendant  may  explain  his  acts 
and  motives.^^  A  person  must  be  presumed  to  intend  to 
do  that  which  he  voluntarily  and  wilfully  does  in  fact  do, 
and  that  he  must  intend  all  the  natural,  probable,  and  usual 
consequences  of  his  ow^n  act,  but  he  is  not  presumed  to 
intend  every  possible  consequence.^* 

SPECIFIC   INTENT. 

There  are  crimes,  however,  in  which  a  particular  or 
specific  intent  is  essential ;  as  in  forgery,  an  intent  to 
defraud,^**  larceny,  an  intent  to  steal,^®  burglary,  an  intent 
to  commit  larceny  or  a  felony,"  assault  to  murder,  an 
intent  to  kill,^^  arson,  an  intent  to  destroy  a  building.*' 
Whenever  a  specific  intent  is  an  element  of  an  offense,  no 
presumption  of  law  can  ever  arise  that  will  decide  it.'** 

EFFECT    OF    DRUNKENNESS    ON    INTENT. 

In  such  cases  if  at  the  time  of  the  commission  of  the 
offense  the  condition  of  mind  of  the  accused  person  is 
such  that  he  is  incapable  of  forming  the  particular  intent 
necessary  to  constitute  the  crime,  the  offense  is  not  com- 
plete, and  in  determining  this  quesetion,  intoxication  may 
be  shown. ^^ 

PERSONS    CAPABLE    OF    COMMITTING    CRIME 

CRIMINAL      CAPACITY. 

The  law  presumes  every  man  responsible  for  his  own 
acts,   unless    the    contrary    is    made    manifest.      As    has 

22  People  V.  Frick.   89  Cal.  151. 

23  People  V.  Ferrell,  31  Cal.  588;   People  v.  Taylor,  36  Cal. 
528. 

24  Peoplel  V.  Munn,  65  Cal.  215. 

25  Peopld  V.  Mitchell,  92  Cal.  590. 

26  People  V.  Devine,  95  Cal.  227. 

2T  People  V.  Nelson,   58  Cal.   104. 

28  People  V.  Mize,  80  Cal.  41. 

29  People  V.  Mooney,  127  Cal.  340. 

30  People  V.  Johnson,  106  Cal.  295;  People  v.  Landman,  103 
Cal.   577. 

31  People  V.  Blake.  62  Cal.  278;    People  v.  Harris,  26  Cal. 
269;  Penal  Code   22. 


CRIMES  AND  PUBLIC  OFFENSES.  37 

already  been  seen,  the  intent  is  discovered  from  the  cir- 
cumstances connected  with  the  crime;  and  an  act  done  or 
omitted  in  violation  of  law  is  presumed  to  be  done  wil- 
fully and  with  malice.  But  intent  also  depends  upon  the 
sound  mind  and  discretion  of  the  accused.^^  There  are, 
then,  certain  circumstances  under  which  the  law  presumes 
a  person  incapable  of  committing  crime.  This  criminal 
incapacity  may  be  classed  under  two  general  heads: 
(i)  Absence  of  intention,  which  includes  infancy,  lunacy, 
idiocy,  insanity,  and  ignorance  of  facts;  and  (2)  Absence 
of  will,  which  includes  unconsciousness,  misfortune,  or 
accident,  coercion  and  fear.^^  Infancy,  idiocy,  and  lunacy, 
as  affecting  criminal  capacity,  are  easily  understood;  from 
the  earliest  stages  of  the  development  of  the  laws  of  civ- 
ilization idiots  and  lunatics  were  not  chargeable  in  crim- 
inal cases  for  their  acts,  if  committed  under  these  inca- 
pacities. Idiocy  and  lunacy  need  no  definition.^*  Infancy 
in  this  state  is  under  the  age  of  fourteen  years.  In  the 
absence  of  clear  proof  that  at  the  time  of  committing  the 
act  charged  against  them,  they  knew  it  to  be  wrongful, 
children  under  that  age  are  deemed  incapable  of  commit- 
ting crime.^® 

INSANITY. 

But  insanity  presents  a  more  complex  question.  The 
precise  nature  and  extent  of  mental  infirmity  which 
destroys  responsibility  for  crime  has  undergone  several 
changes  in  the  history  of  the  law  of  England.  The  many 
decisions  of  our  own  courts  conclusively  show  that  even 
now  this  important  subject  of  criminal  jurisprudence  is 
not  free  from  difficulty.  While  as  a  defense  insanity  will 
always  commend  itself  to  a  just  and  humane  law,  yet  by 
reason  of  the  facility  with  which  it  may  be  counterfeited, 

32  Penal  Code    21. 

33  Penal  Code    26. 

34  Blackstone's   Commentaries,   book  IV.,   p.   24. 

35  Penal   Code    26. 


88  CRIMINAL  LA^  AND  PROCEDURE. 

it   is   looked   upon   with   distrust  by   courts  and   received 
with  caution.^® 

DEGREE    OF    UNSOUNDNESS. 

It  may  be  stated  generally  that  complete  and  permanent 
insanity  which  totally  deprives  of  understanding  and  mem- 
ory, or  destroys  the  power  of  distinguishing  right  from 
wrong,  always  excuses  from  guilt.  But  the  possession  of 
an  unsound  mind  at  the  time  of  the  act  is  not  of  itself  a 
sufficient  defense.  A  monomaniac  certainly  is  of  unsound 
mind,  yet  such  a  person  may  be  capable  of  distinguishing 
right  from  wrong,  in  relation  to  particular  acts.  As  to 
such  acts,  he  must  be  held  responsible.  The  insanity  or 
unsoundness  of  mind  that  excuses  crime  must  be  such 
that,  at  the  time  of  committing  the  act,  the  party  accused 
was  laboring  under  such  a  defect  of  reason,  from  disease 
of  mind,  as  not  to  know  the  nature  or  quality  of  the  act, 
or  if  he  did  know  it,  that  he  did  not  know  he  was  doing 
what  was  wrong.  This  is  the  definition  given  by  Chief 
Justice  Tindall,  in  the  House  of  Lords,  on  the  trial  of 
McNaughton,  in  the  year  1843.  It  has  been  adopted  by 
our  Supreme  Court,  and  approved  so  often  that  it  may 
now  safely  be  said  to  be  the  established  law  in  this  s'tate.^' 

MORAL  INSANITY,  IRRESISTIBLE  IMPULSE,  ETC. 

If  the   accused   person   has   the   requisite    soundness   of 
mind   fully  to  understand  and  appreciate   the  nature  and 
quality  of  his  act    and  its  consequences,  moral  depravity 
or  impairment  of  will  can  not  relieve  him  from  his  respon- 
se People  V.  Dennis,  39  Cal.  637;   People  v.  Bumberger.  45 
Cal.  650;   People  v.  Ferris,  55  Cal.  592;   People  v.  Pico, 
62  Cal,  55;  People  v.  McCarthy,  115  Cal.  264;   People  v. 
Larabee,  115  Cal.  159;  People  v.  Kloss,  115  Cal.  577;  Peo- 
ple V.  Allender,  117  Cal.  83;   People  v.  Hettick,  126  Cal. 
425;   People  v.  Methever,  132  Cal.  331. 
37  People  V.  Coffman,   24   Cal.   30;    People  v.   McDonel],   47 
:  Cal.  134;   People  v.  Ferris,  55  Cal.  591;   People  v.  Hob- 

son.  17  Cal.i  424;  People  v.  Hurtado,  63  Cal.  288;  People 
V.  Hoin,  62'  Cal.  120;  People  v.  Hubert,  119  Cal.  216; 
People  V.  Barthleman,  120  Cal.  11;  People  v.  Fellows, 
126  Cal.  240;    People  v.  Ward,  105  Cal.  335. 


PERSOWS  CAPABLE  OF  COMMITTING  CRIME.  ^ 

sibility.^®  It  may  seem  a  harsh  rule  that  the  loss  of  power 
to  avoid  the  criminal  act  by  reason  of  an  impairment  of 
will  is  no  defense,  if  the  accused  had  sufficient  capacity 
to  understand  its  wrongfulness.  It  certainly  punishes  a 
man  for  an  act  he  cannot  resist.  Mr.  Justice  Temple  puts 
the  reason  for  the  rule  thus : 

"No  one  contends  that  the  legal  test  is  perfect,  doubt- 
less it  is  far  from  being  so;  but  when  the  will  power  i$ 
weakened,  although  the  mentality  is  not  at  all  or  only 
slightly  impaired,  the  fear  of  punishment  must  be  of  some 
value  as  a  restraint,  and  the  class  of  people  referred  to 
need  that  restraining  influence  most. 

"There  are  doubtless  some  cases,  like  that  in  Hadfield's 
case,  27  How.  St.  Tr.  1281,  in  which  the  fear  of  punish- 
ment does  not  restrain,  but  where  the  rule  works  manifest 
injustice  the  unfortunate  defendant  is  in  some  way  saved 
from   punishment."^" 

INSANE    DELUSION. 

In  cases  of  partial  insanity,  where  the  accused  person 
is  subject  to  delusion,  he  is  judged  as  if  the  facts  with 
respect  to  which  the  delusion  exists  were  real.  To  illus- 
trate :  One  H,  under  the  influence  of  his  delusion,  imag- 
ines his  wife  is  trying  to  poison  him,  and  slays  her.  If 
these  vagaries  were  real  they  would  not  justify  the  homi- 
cide, hence  H  is  guilty  of  murder.*" 

INSANITY    FROM    DRUNKENNESS. 

It  is  a  well  settled  rule  that  voluntary  intoxication  is  no 
excuse  for  crime ;  and  insanity,  produced  by  intoxica- 
tion does  not  destroy  responsibility  for  criminal  acts  when 
the  party  while  sane  and  responsible  voluntarily  renders 

38  People  V.  Clendenin,  91  Cal.  35;  People  v.  Barthleman, 
120  Cal.  11;  People  v.  Kerrigan,  73  Cal.  225;  People  v. 
McCarthy.  115  Cal.  255;  People  v.  Ward,  105  Cal.  335; 
People  V.  Hubert,  119  Cal.  223;  People  v.  Owens,  123 
Cal.  482;  People  v.  Pico,  62  Cal.  54;  People  v.  Hoin,  62 
Cal.  120;  People  v.  Kerraghan,  72  Cal.  617;  People  v. 
Goldsworthy,  130  Cal.  600;  People  v.  Methever,  132  Cal. 
832. 

39  People  V.  Hubert,  119  Cal.  223. 
■to  People  V.  Hubert,  119  Cal.  223. 


40  CRIMINAL  LAW  AND  PROCEDURE. 

himself  intoxicated."  But  this  is  not  true  where  the 
accused  person  was  drugged  or  rendered  drunk  and 
unconscious  against  his  will.  It  is,  however,  equally  well 
established  that  when  drunkenness  has  become  confirmed 
and  habitual,  so  as  to  produce  permanent  and  total  insan- 
ity, it  affects  the  legal  responsibility  as  ol;her  insanity. 
The  deduction  from  the  cases  is  that  voluntary  intoxica- 
ion  does  not  excuse;  but  that  fixed  insanity,  though  result- 
ing from  an  abuse  of  intoxicants,  does.''-  It  must,  how- 
ever, be  settled  insanity,  and  not  merely  a  temporary  con- 
dition produced  by  recent  use  of  intoxicating  liquors.*' 

PRESUMPTION    OF    SANITY. 

The  law  presumes  sanity,  and  places  the  burden  of  prov- 
ing insanity  on  the  accused.  It  is  not  sufficient  that  there 
arise  a  reasonable  doubt  as  to  the  sanity  of  the  defendant, 
for  it  is  an  affirmative  defense,  and  he  must  establish  it  by 
a  preponderance  of  evidence.**  When  temporary  or  spas- 
modic insanity  is  proved  to  have  existed  prior  to  the  com- 
mission of  the  criminal  act,  there  is  no  presumption  of  its 
continuance  down  to  the  specific  time  of  the  criminal 
act.  To  establish  the  basis  of  a  presumption  that  insanity, 
once  shown  to  have  existed,  continues  to  exist,  it  must 
appear  to  have  been  of  such  duration  and  character  as  to 

41  Penal  Code  22;  People  v.  Williams,  43  Cal.  344;  People 
V.  Jones,  63  Cal.  169;  People  v.  Lewis,  36  Cal.  531; 
People  V.  Blake,  65  Cal.  275;  People  v.  Franklin,  70  Cal. 
643;  People  v.  Ferris,  55  Cal.  592. 

42  People  V.  Travers,  88  Cal.  233;  People  v.  Fellows,  126 
Cal.  239;   People  v.  Findley,  132  Cal.  301. 

43  People  V.  FindleyJ  132  Cal.  307. 

44  People  V.  Messersmith,  57  Cal.  575;  People  v.  Ferris,  55 
Cal.  558;  People  v.  Ward,  105  Cal.  335;  People  v.  Coff- 
man,  24  Cal.  230;  People  v.  McNulty,  93  Cal.  433;  Peo- 
ple V.  Wilson,  49  Cal.  14;  People  v.  Pico,  62  Cal.  55; 
People  V.  Travers,  88  Cal.  238;  People  v.  Bawden,  90 
Cal.  199;  People  v.  Bemmerly,  98  Cal.  304;  People  v. 
Hettick,  126  Cal.  425;  People  v.  Allender,  117  Cal.  81; 
People  V.  McCarthy,  115  Cal.  255;  People  v.  Ebanks,  86 
Cal.  295;  People  v.  Bushton,  80  Cal.  160;  People  v. 
McDonell,  47  Cal.  134;  People  v.  Hamilton,  62  Cal.  284; 
People  V.  Elliott,  80  Cal.  296;  People  v.  Myers,  20  Cal. 
518;  People  v.  Marshall,  59  Cal.  386;  People  v.  Smith, 
59  Cal.  608;  People  v.  Cheong  Foon  Ark,  61  Cal.  529; 
People  V.  Schmidt,  106  Cal.  84;  People  v.  Bell,  49  Cal. 
485;  People  v.  Wreden,  59  Cal.  392. 


PARTIES  TO  CRIMES.  41 

indicate  the  probability  of  its  continuance,  and  not  simply 
the  possibility  or  even  probability  of  its  recurrence." 

IGNORANCE     OF     FACT. 

As  a  general  rule,  a  person  who  has  done  an  act  which 
is  criminal  cannot  defend  himself  by  reason  of  his  igno- 
rance of  the  law.  The  law  is  administered  upon  the  princi- 
ple that  every  one  must  be  conclusively  taken  to  know  it 
without  proof  that  he  does  know  it.  But  ignorance  or 
.mistake  of  facts  does  excuse.  Whenever  a  person  com- 
mits the  act  or  makes  the  omission  charged  in  ignorance 
of  the  facts  which  bring  such  an  act  or  omission  within 
the  provisions  of  the  law,  he  is  excused,  because  he  has 
neither  criminal  intent  nor  will.*® 

COERCION. 

The  command  of  a  master  to  his  servant,  principal  to 
his  agent,  or  parent  to  child  will  not  justify  a  guilty  act 
done  in  pursuance  of  it.*'  And  coercion  will  in  no  case 
excuse  a  felony,  but  married  women  acting  under  the 
threat,  command  or  coercion  of  their  husbands  are  justi- 
fied in  the  commission  of  misdemeanor.** 

PARTIES    TO    CRIMES 

PRINCIPALS    AND    ACCESSORIES. 

Parties  to  crime  are  classed  as  principals  and  accessories. 
The  distinction  between  them,  however,  no  longer  depends 
on  the  presence  or  absence  of  the  accused  at  the  commis- 
sion of  the  crime,  but  on  whether  his  incriminating  acts 
were  before  or  after  the  completion  of  the  offense.  Thus, 
the  distinction  existing  at  common  law  between. an  acces- 
sory before  the  fact  and  a  principal,  and  between  princi- 
pals of  the  first  and  second  degree,  in  cases  of  felony,  has 
been  abrogated.*® 

45  People  V.  Findley,  132  Cal.  307;    People  v.  Travers.  88 

Cal.  239. 
46. People  V.  Burns,  75  Cal.  630. 

47  People   V.   Richmond,   29   Cal.   415. 

48  Penal  Code    26. 

49  People  V.  B.earss,  10  Cal.  688;  People  v.  Hodges,  27 
Cal.  340;  People  v.  Outeveras,  48  Cal.  19;  People  v. 
Rozelle,  78  Cal.  89;  People  v.  CuUum,  122  Cal.  187. 


42  CRIMINAL,  LAW  AN©  PROCEDURE. 

PRINCIPALS. 

Those  concerned  in  the  commission  of  a  crime,  whether 
directly  by  committing  the  act  or  aiding  and  abetting 
therein,  or  indirectly,  by  advising  and  encouraging  its  com- 
mission, afe  principals.  And  all  persons  who  counsel, 
advise,  encourage  or  compel  those  without  criminal  capac- 
ity, of  occasion  the  drunkenness  of  another  to  cause  him 
to  commit  any  crime,  are  principals  in  any  crime  so  com- 
mitted.'** All  persons  concerned  in  the  commission  of  a 
felotiy,  whether  they  directly  commit  the  act  constituting 
the  offense,  or  aid  and  abet  in  its  commission,  though  not 
present,  are  treated  in  all  respects  as  principals.'* 

AIDING    AND    ABETTING. 

But  to  constitute  a  principal  there  must  be  both  an  aid- 
ing and  abetting.^2  Mere  presence  at  the  commission  of 
a  crime  or  neglect  to  prevent  the  same  is  not  sufficient."' 
Even  aiding  and  assisting  without  guilty  knowledge  of 
felonious  intent  is  not  criminal  ;'"*  but  one  who  aids  and 
abets  a  felony  is  guilty  of  any  other  crime  that  may  be 
committed  in  pursuance  of  that  purpose. '^'^  But  the  rule 
is  otherwise  in  misdemeanors,  and  he  is  not  liable  in  aid- 
ing and  abetting  a  misdemeanor  for  the  commission  of  a 
felony  not  involved  in  nor  incidental  to  the  crime  encour- 
aged.''* 

ACCESSORIES. 

Afe  those  who,  after  knowledge  that  a  felony  has  been 
comfnitted,  conceal  it  from  the  magistrate,  or  harbor  and 
protect  the   person   charged    with,   or    convicted    thereof. 

so  Penal  Code    31. 

f*!  People   V.    Davidson,   5   Cal.    134;    People   v.   Bearss,   10 

Cal.    68;    People   v.    Newberry,    20    Cal.    441;    People    v. 

Outeveras,   45  Cal.   26;    People    v.   Ah   Fat,   48   Cal.    61; 

People  V.  Rozelle,  78  Cal.  84;    People  v.  Gallagher,  100 

Cal.  466;   People  v.  Ah  Len,  98  Cal.  133. 
52  People   V.   Dole,   122  Cal.   492;    People  v.   Compton,  123 

Cal.  412. 
63  People  V.  Woodward,  45   Cal.  293;    People  v.  Leith,   52 

Cal.  251;   People  v.  Ah  Ping,  27  Cal.  491. 

54  People  V.  Warren,,  130  Cal.  678;   same  case,  130  Cal.  683. 

55  People  V.   Majors,   65   Cal.   138;    People  v.   Vasquez,   49 
Cal.  560;   People  v.  Keefer.  65  Cal.  232. 

K6  People  V.  Keefer,  65  Cal.  232. 


PARTIES  TO  CRIMES.  43 

The  word  "conceal"  here  means  more  than  simply  with- 
holding knowledge  possessed  by  a  party  that  a  felony  has 
been  committed.  There  must  be  some  positive  and  affirm- 
ative act  of  concealment.  Mere  silence  after  knowledge,  is 
not  sufficient  to  constitute  an  accessory.  And  "charge" 
imports  a  formal  complaint  in  some  legal  proceeding  filed 
against  the  criminal.  Mere  general  rumors  and  common 
talk  that  a  party  has  committed  a  felony  is  wholly  insuf- 
ficient.^^ Thus,  one  who  aids  in  disposing  of  the  body 
of  the   murdered   person   is   an  accessory.''* 

TRIAL    OF    ACCESSORIES    BEFORE    THE    FACT, 

At  common  law  accessory  before  the  fact  could  not  be 
tried  or  convicted  without  the  previous  trial  and  convic- 
tion of  his  principal.  The  acquittal  of  the  principal  dis- 
charged the  accessory,  who  could  not  be  afterward  tried 
without  his  own  consent.  The  legal  guilt  of  an  accessory 
depended  upon  the  guilt  of  the  principal,  which  could  be 
established  only  on  a  prosecution  against  him.  But  since 
an  accessory  before  the  fact  is  now  for  all  purposes  a  prin- 
cipal, he  may  be  tried,  convicted  and  punished  as  such, 
though  the  principal  may  be  neither  prosecuted  nor  tried, 
and  though  the  principal  may  have  been  acquitted."' 

57  People  V.  Garnett,  129  Cal.  366. 

68  People  V.  Keefer,  65   Cal.   232. 

»9  People  V.  Bearss,  10  Cal.  68;   People  v.  Newberry,  20 
Cal.  440. 


CHAPTER  II. 


JURISDICTION. 


Jurisdiction  to  try  crimes  depends  upon  two  facts;  or 
rather,  is  divided  into  two  parts:  the  territorial  jurisdic- 
tion of  the  ,cpurt  or  the  boundaries  within  which  a  court  of 
general- jurisdiction  _ may  act,  and  the  power  or  authority 
of  the  court  to  try,  particular  oflfenses  within  such  terri- 
torial   jurisdiction.        ,  , 

OF,  THE    LOCALITY. 

Those  liable  to  punishment  under  the  laws  of  this  state 
are:  (i)  All  persons  who  commit,  in  whole  or  in  part, 
any  crime  within  this  state;  (2)  All  who  commit  larceny 
or  robbery  ot;t  of  this  state  and  bring  to,  or  are  found 
with  the  property  stolen,  in  this  state;  and  (3) All  who, 
being  out  of  this  state,  cause  or  aid,  advise  or  encourage, 
another  person  to  commit  a  crime  within  this  state,  and 
are  afterward  found  therein.^  This  embraces  all  persons 
punishable  under  the  laws  of  this  state. ^ 

FEDERAL     JURISDICTION. 

Crimes  committed  in  this  state,  which  are  by  law  cog- 
nizable exclusively  in  the  courts  of  the  United  States,  are 
not  liable  to  punishment  here.^  The  mere  ownership  by 
the  United  States  of  land  or  property  within  the  state  does 
not  show  any  federal  jurisdiction  over  crimes  committed 
upon  it,  as  that  fact  does  not  oust  the  jurisdiction  of  the 
state ;  but  ownership  must  be  acquired  by  purchase  with  the 
consent  of  the  legislature,  which  does  not  include  the 
acquisition   of   property   by    eminent    domain,    even    when 

1  Penal  Code    27. 

2  People  V.  Botkin,  132  Cal.  232. 
8  Penal  Code   777. 


JURISDICTION.  45 

that  proceeding  is  authorized  by  the  legislature.*  State 
courts  have  jurisdiction  of  a  prosecution  of  an  Indian, 
when  not  a  member  of  a  recognized  tribe  having  a  chief 
and  tribal  laws.°  The  jurisdiction  of  the  federal  court  is 
a  matter  of  defense  and  must  be  shown  by  the  defendant.' 

OFFENSES     PARTLY     COMMITTED    OUT    OF    STATE. 

When  the  commission  of  a  public  offense,  commenced 
without  the  state,  is  consummated  within  its  boundaries, 
the  defendant  is  liable  to  punishment  in  this  state,  though 
he  was  out  of  the  state  at  the  time  of  its  commission. 
If  consummated  here  through  the  intervention  of  an 
agent,  or  any  other  means  proceeding  directly  from  him- 
self, the  jurisdiction  is  in  the  county  where  consummated.'^  ♦ 
Thus  in  treason,  where  the  overt  act  is  committed  out  of 
the  state,  jurisdiction  is  in  any  county  of  the  state;'  and 
when  property  is  stolen  in  another  state,  or  is  received 
with  knowledge  that  it  was  stolen  and  brought  into  this 
state,  jurisdiction  is  in  any  county  into  or  through  which 
such  stolen  property  has  been  brought;®  but  this  does  not 
apply  to  property  stolen  in  a  foreign  country.^"  Courts 
of  this  state  have  jurisdiction  to  punish  inhabitants  of  the 
state  who,  by  previous  appointment  fight,  or  are  concerned 
as  seconds,  in  a  duel  out  of  the  jurisdiction  of  the  state, 
or  who  leave  the  state  for  the  purpose  of  evading  the 
operation  of  the  laws  of  this  state  in  relation  to  duel- 
ing." 

CRIMES    COMMITTED    IN    TWO    OR    MORE    COUNTIES. 

Where  a  piiblic  offense  is  committed  in'  part  in  one 
county  and  in  part  in  another,  or  the;  acts  or  effects  thereof 
constituting  or  requisite  to  the  consummation  of  the 
offense  occur  in  two  or  more  counties,^^  or  on  the  bound- 

*  People  V.   Collins,   105   Cal.    504. 
5  People  V.  Ketchum,  73  Cal.  635. 

e  People  v.  Collins,  105  Cal.  504;  People  v.  Fredericks,  106 
Cal.  557. 

7  Penal  Code  778;  Ex  parte  Hedley,  31  Cal.  108. 

8  Penal  Code    788. 

9  Penal  Code   789;  People  v.  Staples,  91  Cal.  27. 

10  People  V.  Black,  122  Cal.  73. 

11  Penal  Code    779-780. 

12  People  V.  Murphy,  51  Cal.  376. 


46  CRIMINAL  LAW  AND  PROCEDURE. 

ary  of  two  or  more  counties,  or  within  five  hundred  yards 
thereof/^  the  jurisdiction  is  in  either  county.'*  Where  it 
is  committed  in  this  state  on  hoard  a  vessel  navigating  a 
river,  bay,  slough,  lake,  or  canal,,  or  lying  therein,  in  the 
prosecuting  of  her  voyage, ''^  or  on  a  railroad  train  or  car 
prosecuting  its  trip,'"  the  jurisdiction  is  in  any  county 
through  which  the  vessel  is  navigated  in  the  course  of  her 
voyage  or  the  train  or  car  passes  in  the  course  of  its  trip, 
or  in  the  county  where  the  voyage  or  trip  terminates.^^ 
Jurisdiction  for  kidnapping,  child  stealing,  taking  away  a 
female  of  previous  chaste  character  for  purposes  of  pros- 
titution and  abduction,  is  in  the  county  in  which  the 
offense  is  committed,  or  out  of  which  the  person  upon 
whom  the  oflFense  was  committed  may,  in  the  commis- 
sion of  the  offense,  have  been  brought,  or  in  which  an  act 
was  done  by  the  defendant  in  instigating,  procuring,  pro- 
moting or  aiding  in  the  commission  of  the  oifense,  or  in  abet- 
ting the  parties  concerned  therein.'^  Bigamy  or  incest  is  pun- 
ishable in  the  county  in  which  committed  or  in  which  the 
defendant  is  apprehended.'^  When  property  taken  in  one 
county  by  burglary,  robbery,  larceny,  or  embezzlement,  has 
been  brought  into  another,  the  jurisdiction  of  the  offense 
is  in  either  county.^"  But  the  indictment  or  information 
should  charge  the  facts  which  give  the  latter  county  juris- 
diction.^' Jurisdiction  of  criminal  actions  for  escaping 
from  prison  is  in  any  county  in  the  state^^  In  prosecu- 
tions for  murder  or  manslaughter,  when  the  injury  which 
caused  the  death  was  inflicted  in  one  county,  and  the  partv 

13  People  V.  Alviso,  55  Cal.  283;  People  v.  Velarde,  59  Cal. 

459. 
i*  Penal  Code    781  and  782. 
15  People  V.  Dougtierty,  7  Cal.  398. 
10  People  V.   Moore,  103  Cal.  510;    People  v.  Webber,  133 

Cal.  23. 
IT  Penal  Code  783. 
1.8  Penal  Code   784. 
10  Penal  Code    785. 

20  Penal  Code  786;  People  v.  Salorse,  62  Cal.  139;  People 
V.  Scott,  74  Cal.  95;  People  v.  Mellon,  40  Cal.  648;  Peo- 
ple V.  Staples,  91  Cal.  27;  People  v.  Jochinsky,  106  Cal. 
640;  People  v.  Garcia,  25  Cal.  531. 

21  People  V.  Scott,  74  Cal.  95;  People  v.  Ah  Own,  39  Cal. 
604. 

22  Penal  Code   787. 


JURISDICTION.  47 

Injured  dies  in  another  county  or  out  of  the  state,  the 
jurisdiction  is  in  the  county  where  the  injury  was 
inflicted.--'  An  accessory  is  punishable  where  his  offense 
was  committed,  notwithstanding  the  principal  offense  was 
committed  in  another  county,^*  and  a  principal  who  was 
not  present  at  the  commission  of  the  principal  offense,  at 
the  same  place  as  if  he  were  so  present  and  aiding  and  abet- 
ting  therein.^" 

CONVICTION    A    BAR. 

Where  an  act  charged  as  a  public  offense  is  within  the 
jurisdiction  of  another  state  or  country,  as  well  as  of  this 
state,  or  is  within  the  jurisdiction  of  two  or  more  counties 
of  this  state,  a  conviction  or  acquittal  thereof  in  the  other 
state  or  country,  or  in  one  of  such  counties  of  this  state, 
is  a  bar  to  a  second  prosecution  or  indictment  therefor  in 
this   state. ^® 

TIME    OF    COMMENCING    CRIMINAL    ACTIONS. 

There  is  no  limitation  of  time  within  which  a  prose- 
cution for  murder,  the  embezzlement  of  public  moneys, 
and  the  falsification  of  public  records  must  be  com- 
menced.^^ An  indictment  must  be  found,  or  an  informa- 
tion filed  for  any  other  felony  within  three  years,-®  and 
for  a  misdemeanor  within  one  year  after  its  commission.^® 
But  if,  when  the  offense  is  committed,  the  defendant  is 
out  of  the  state,  the  indictment  may  be  found  or  an  infor- 
mation filed  within  the  term  limited  after  his  coming 
within  the  state. ^^  No  time  during  which  the  defendant 
is  not  an  inhabitant  of,  or  actually  residing  within  the 
state  is  a  part  of  the  limitation.^^  Absence  from  the  state 
must  be  alleged  in  the  indictment,  if  relied  on  to  take  the 

23  Penal  Code   790. 

24  Penal  Code   791. 

25  Penal  Code   792. 

26  Penal  Code   793-794. 

27  Penal  Code   799. 

28  Penal  Code   800. 

29  Penal  Code  801;  People  v.  Salorse,  62  Cal.  142;  People  v. 
Ayhens,  85  Cal.  86. 

30  Penal  Code   802. 

31  Penal  Code   802;  People  v.  Ayhens,  85  Cal.  86;  People  v. 
Miller,  12  Cal.  291. 


48  CRIMINAL  LAW  AND  PROCEDURE. 

offense  out  of  the  statute.  Prima  facie  lapse  of  time  is  a 
good  defense.*-  The  bar  of  the  statute  is  imperative  and 
mandatory  and  continuances  of  the  preliminary  examina- 
tion, granted  at  the  request  of  the  defendant,  do  not  waive 
it.  Information  as  here  used  means  the  accusation  filed 
by  the  district  attorney  in  the  Superior  Court,  and  not  the 
complaint  with  the  justice  of  the  peace.^^  The  provision 
is  liberally  construed  in  favor  of  the  defendant  and  under 
an  indictment  for  a  felony  there  can  not  be  a  conviction 
of  a  misdemeanor,  committed  more  than  one  year  prior  to 
its  filing,  although  included  in  the  crime  charged.^* 

OF   COURTS. 

Consent  will  not  confer  jurisdiction  to  try  th»  defendant 
for  a  crime  not  alleged  in  the  indictment,***  nor  does  juris- 
diction attach  where  the  court  is  npt  legally  constituted. 
A  void  conviction  is  simply  coram  non  judice,^^  and  the 
defendant  will  be  released  on  a  writ  of  habeas  corpus 
where  the  conviction  is  by  a  court  without  legal  exist-, 
ence.*^  A  de  facto  officer  cannot  exist  unless  there  is  a 
legal  office.*^  But  a  court  has  jurisdiction  to  try  a  con- 
vict who  has  been  produced  for  trial  upon  an  illegal 
order.*^  Jurisdiction  of  courts  of  general  jurisdiction  is 
presumed  in  the  absence  of  a  showing  to  the  contrary.*" 
But  there  is  no  presumption  in  favor  of  the  jurisdiction 
of  inferior  courts  of  limited  jurisdiction."  And  it  will  be 
presumed  that  the  judge  of  another  court  who  presided  at 
the  trial  in  a  Superior  Court,  without  objection,  was  act- 
ing rightfully."     Jurisdiction   of  the  court  is   determined 

32  People  V.  Miller,  12  Cal.  291. 

33  People  V.  Ayhens,  85   Cal.   86. 

34  People  V.  Picetti,  124  Cal.  361. 

35  People  V.  Granlce,  50  Cal.  447. 

3«  Ex  parte  Glambonini,   117  Cal.  573;    Crew  v.  Pratt,' 119 
Cal.   149. 

37  Ex  parte  Glambonini.  117  Cal.  577. 

38  Ex  parte  Glambonini,  117   Cal.   577;    People  v.   Toal,   85 
Cal.  333;  Buck  v.  Eureka,  109  Cal.  513. 

39  Ex  parte  Clark,  85  Cal.  203. 
*o  People  V.  Mellon,  40  Cal.  68. 

41  Ex  parte  Kearny,  55  Cal.  212. 

42  People  V.  Ah  Lee  Doon,  97  Cal.  171;   People  v.  Mellon, 
40  Cal.  648. 


JURISDICTION.  49 

by  the  grade  of  the  offense  charged  in  the  indictment,  and 
not  by  that  on  which  a  conviction  is  had.*^  But  on  appeal 
the  jurisdiction  of  the  Supreme  Court  is  determined  by 
the  offense  of  which  the  defendant  is  convicted.*^  Thus 
the  Supreme  Court  has  no  appellate  jurisdiction  of  the 
crime  where  the  conviction  of  the  crime  for  which  the 
defendant  was  sentenced  is  of  less  degree  than  a  felony.** 
And  its  jurisdiction  is  lost  by  sending  down  the  remittitur 
where  there  has  been  no  mistake  of  fact,  or  fraud  prac- 
ticed.*® On  reversal  of  an  order  granting  a  new  trial,  the 
Superior  Court  has  only  jurisdiction  to  render  an  appro- 
priate judgment  on  the  verdict.*^  The  Superior  Court  has 
original  jurisdiction  in  all  crirninal  cases  amounting  to 
felony,  and  cases  of  misdemeanor  not  otherwise  provided 
for,**  but  has  jurisdiction  of  crimes  which  may  be  punishable 
either  as  a  felony  or  misdemeanor,  such  as  obtaining  money 
by  false  pretenses,*^  assault  by  means  likely  to  produce  great 
bodily  injury,^"  public  nuisance  injurious  to  health. ^^  The 
presentation  of  a  misdemeanor  by  indictment  does  not 
give  the  Superior  Court  jurisdiction.^^  Objections  to 
jurisdiction  must  be  taken  by  demurrer  or  plea.  They 
cannot  be  taken  by  motion  to  set  aside  the  indictment  or 
information. ''^  A  void  penalty  clause,  independent  of  the 
law  and  severed  from  the  declaratory  act,  does  not  destroy 

*3  People  V.  Holland,  59  Cal.  364. 

44  People  V.  Cornell,  16  Cal.  187. 

45  People  V.  Applegate,  5  CaL  295;  People  v.  Shear,  7  Cal. 
140;  People  v.  Vick,  7  Cal.  165;  People  v.  Johnson,  30 
Cal.  101;  People  v.  Apgar,  35  Cal.  390. 

46  People  V.  McDermott,  97  Cal.  247. 

47  People  V.  Woods,  84  Cal.  441. 

48  In  re  Grosbois,  109  Cal.  445;  Green  v.  Superior  Court,  78 
Cal.  556;  People  v.  Joselyn,  80  Cal.  544;  In  Matter  of 
Marks,  45  Cal.  199;  People  v.  Lawrence,  82  Cal.  182; 
v^r  po.t^  Wsllinpford,  60  Cal.  103;  Gafford  v.  Bush,  60 
Cal.  153:   Ex  parte  Noble,  96  Cal.  362.    C.  C.  P.  Sec.  76. 

49  Ex  parte  Neustadt,  82  Cal.  273;  People  v.  Hamberg,  84 
Cal.  468. 

50  People  V.  Fahey,  64  Cal.  342. 

51  In  matter  of  Kurtz,  68  Cal.  412. 

52  Ex  parte  Waliingford,  60  Cal.  103;  Green  v.  Superior 
Court,  78  Cal.  556. 

53  People  V.  More,  68  Cal.  500;  People  v.  Beach,  122  Cal. 
38. 


CRIMES--4 


50  CRIMINAL  LAW  A»D  PROCEDURE. 

jurisdiction  to  try  for  the  offense,**  nor  does  the  fact  that 
the  time  of  the  offense  is  not  set  forth  in  the  complaint 
affect  the  jurisdiction  of  the  court."**  The  sessions  of  the 
court  are  the  times  during  which  the  court  is,  in  fact,  held 
at  the  place  appointed,  and  engaged  in  business;  and  the 
recesses  are  the  times  in  which  the  court  is  not  actually 
engaged  in  business.  There  are  no  terms  of  court  in  this 
state.*®  It  is  but  one  court  although  divided  into  depart- 
ments. The  jurisdiction  of  causes  is  vested  by  the  con- 
stitution in  the  Superior  Court  and  not  in  any  particular 
judge  or  department  thereof,  although  there  may  be  as 
many  sessions  of  the  court  at  the  same  time  as  there  are 
judges.  The  division  into  departments  is  purely  imagin- 
ary and  for  the  convenience  of  business.*^  It  has  power 
to  adjudicate  on  Sunday  the  fact  that  the  jury  cannot 
agree,  and  continue  the  cause.*^ 

VENUE. 

The  venue  must  be  proved,***  but  proof  that  the  crime 
was  committed  in  a  particular  city  is  sufficient.®"  The 
court  will  take  judicial  notice  that  the  place  where  the  trial 
is  held  is  the  county  seat,  and  situated  within  the  county 
where  the  offense  is  shown  to  have  been  committed,®^  and 
also  of  the  streets  and  numbers,®^  and  of  the  name  of  the 
county  seat.®^  The  proof  of  venue  may  be  made  indi- 
rectly.®* Thus  where  the  testimony  shows  that  the 
deceased  resided  in  the  county,  and  is  plainly  implied  that 
she  resided  at  the  house  in  front  of  which  her  body  was 
found,  and  into  which  it  was  carried,  the  venue  is  suffi- 

54  Bx  parte  Stephen,  114  Cal.  278. 

55  Ex  parte  Ah  Sing,  87  Cal.  423. 

56  In  re  Gannon,  69   Cal.   541;    Falltrick  v.   Sullivan,   119 
Cal.  61&. 

5T  White  V.  Superior  Court,  110  Cal.  60;   Brown  v.  Camp- 
bell, 110  Cal.  648. 
58  People  V.  Lightner,  49  Cal.  226. 
58  People  V.  Roach,   48    Cal.   382. 

60  People  V.  Loui  Tung,  90  Cal.  377. 

61  People  V.  Faust,  113  Cal.  172. 

62  People  V.  Ellsworth,  92  Cal.  594;  People  v.  McGregar,  88 
Cal.  140. 

63  People  V.  Etting,  99  Cal.  577. 
«4  People  V.  Smith,  121  Cal.  356. 


JURISDICTION.  51 

ciently  proved.*"*  But  the  locus  delicti  must  be  proved  in 
the  county  charged.^^  And  where  the  place  of  the  trial  is 
the  wrong-  county  the  court  should  arrest  the  judgment 
on  its  own  motion.^^  An  accessory  may  be  tried  in  the 
county  in  which  his  offense  was  committed,  notwithstand- 
ing the  principal  offense  was  committed  elsewhere.®* 

65  People  V.  Kamaunu,  110  Cal.  609. 

«6  People  V.  Parks,  44  Cal.  105;   People  v.  Roach,  48  Cal. 

382;   People  v.  Bevans,  52  Cal.  471, 
67  People  V.  Hodges,  27  Cal.  340. 
«8  People  V.  Hodges,  27  Cal.  340;  People  v.  Stakem,  40  Cal. 

602. 


CHAPTER  III. 


CONSXITUTIONAIv  RIGHTS  OK  THE? 
DEFENDANT. 


No  person  can  be  convicted  of  a  crime  in  this  state 
except:  (i)  By  a  verdict  of  a  jury;  (2)  on  his  own  con- 
fession in  open  court;  (3)  by  judgment  of  an  authorized 
court,  when  he  refuses  to  plead  after  his  demurrer  is  dis- 
allowed; (4)  and  by  judgment  of  an  authorized  court  in 
cases  not  amounting  to  a  felony,  where  he  has  waived  a 
jury.^  The  humanity  of  the  law  provides  that  a  person 
accused  of  a  crime  is  guaranteed  certain  rights,  among 
which  are  the  right  to  a  speedy  and  public  trial  by  a 
jury;  to  appear  in  person  and  by  counsel,  and  be  con- 
fronted with  the  witnesses  against  him ;  to  a  reasonable 
bail,  except  in  cases  of  murder  where  the  proof  is  evident 
and  presumption  great;  that  he  shall  not  be  twice  put  in 
jeopardy  for  the  same  offense,  or  compelled  to  be  a  witness 
against  himself,  nor  to  be  deprived  of  life,  liberty,  or  prop- 
erty without  due  processs  of  law.^* 

SPEEDY    TRIAL, 

A  defendant  is  entitled  to  a  speedy  trial. ^  A  speedy 
trial  does  not  mean  at  once,  but  with  all  convenient  dis- 
patch. It  implies  a  reasonable  time  for  the  state  to  pro- 
vide courts  and  juries  and  to  procure  witnesses.^  Unless 
good  cause  to  the  contrary  is  shown,  the  court  must  order 
the  prosecution  dismissed,  whenever  the  indictment  is  not 
found  or  an  information  filed  against  a  person  within 
thirty  days  after  he  has  been  held  to  answer  on  a  public 
offense ;  or  where  the  accused,  whose  trial   has  not  been 

1  Penal  Code,  689,  1011. 
laConstitution,  Art.  I,  Sees.  6,  7  and  13. 

2  Penal  Code   686. 

3  People  V.  Buckley,  116  Cal.  152. 


CONSTITUTIONAL  RIGHTS  OF  DEFENDANT.  53 

postponed  at  his  own  request,  is  not  brought  to  trial 
within  sixty  days  after  the  filing  of  the  indictment  or 
information.*  In  either  case  there  must  be  good  cause 
shown  for  delay  or  the  accused  is  entitled  to  be  dis- 
charged. The  statute  is  imperative.  The  court  has  no 
discretionary  power  to  deny  a  right  of  such  importance  or 
to  prolong  his  imprisonment  without  such  trial  beyond  the 
time  provided  by  law.*^  The  defendant  is  not  entitled  to  a 
dismissal,  however,  when  the  delay  is  caused  by  the  court 
being  engaged  on  the  trial  of  another  case®  which  has 
precedence,'^  or  is  granted  at  the  request  of  the  defendant,' 
or  is  caused  by  defendant's  appeal,®  or  continued  by  rea- 
son of  the  illness  of  the  judge,^"  or  by  a  mistrial. ^^  The 
delay  must  be  without  just  excuse  to  entitle  to  a  dis- 
missal.^^ The  defendant  must  demand  a  dismissal,  and 
he  waives  it  by  going  to  trial  without  objection. ^^  But  a 
failure  to  bring  to  trial  within  the  sixty  days  after  a 
remittitur  is  filed  is  not  ground  for  dismissal.^* 

It  is  the  duty  of  the  prosecution  diligently  to  prosecute 
the  case  against  the  defendant.  The  declaration  of  rights 
in  the  constitution  is  a  command  and  limitation  of  power 
upon  state  officials  by  the  people  who  created  the  formal 
government.  The  requirement  of  the  statute  of  trial 
within  sixty  days  is  to  be  regarded  as  a  construction  of  the 
constitutional  guarantee  of  a  speedy  trial.  Its  effect  must 
be  held  to  be  that  an  unexcused  delay  of  sixty  days,  at  any 
time,  to  try  a  defendant,  who  does  not  consent  to  the  delay, 
entitles  him  to  have  the  prosecution  dismissed.     It  is  suffi- 

4  Penal  Code,  1382. 

5  People  V.  Morino,  85  Cal.  515. 

fl  People  V.  Henry,  77  Cal.  445;   People  v.  Bene,  130  Cal, 
159. 

7  People  V.  Vasalo,  120  Cal.  168. 

8  People  V.  Cline,   74    Cal.   577. 

9  People  V.  Lundin,  120  Cal.  308. 

10  People  V.  Camllo,  69  Cal.  540. 

11  Ex  parte  Ross,  82  Cal.  108. 

12  People  V.  Morino,  85  Cal.  515;  People  v.  Staples,  91  Cal. 
30;   People  v.  Douglass,  100  Cal.  3. 

13  People  V.  Hawkins,    127    Cal.    372;    People   v.   Douglass, 
100  Cal.  1. 

14  People  V.  Giessea,  63  Cal.  345. 


64  CRIMINAL  LAW  A«D  PROCEDURE. 

cient  for  the  defendant  to  show  that  he  has  been  detained 
without  trial  for  more  than  sixty  days ;  good  cause  there- 
for must  be  shown  by  the  people.  There  is  no  presump- 
tion' in  the  trial  court  that  the  court  has  acted  regularly  or 
that  good  cause  in  fact  exists. ^*^ 

PUBLIC    TRIAL. 

The  defendant  is  entitled  to  a  public  trial,"  which  the 
court  has  no  authority  to  deny.^*'  The  convenience  of  the 
court  is  not  to  be  considered,  and  a  denial  of  this  right  is 
presumed  to  be  prejudicial  to  the  defendant.^^  The 
requirement  is  for  the  benefit  of  the  accused,  that  the  pub- 
lic may  see  that  he  is  fairly  dealt  with,  and  not  unjustly 
condemned,  and  that  the  presence  of  the  interested  spec- 
tators may  keep  his  triers  keenly  alive  to  a  sense  of  their 
responsibility,  and  to  the  importance  of  their  functions. 
The  court  has  no  right  to  exclude  all  persons  except  the 
officers  of  the  court  and  the  defendant,  but  must  permit  a 
reasonable  proportion  of  the  public  to  attend,  notwith- 
standing some  persons  could  be  of  no  service  to  the 
accused  and  were  present  through  mere  curiosity.^®  But 
the  exclusion  of  spectators,  without  partiality  or  favorit- 
ism, where  the  room  is  too  small  to  accommodate  them 
all,  is  not  improper  if  the  doors  be  not  closed."  The 
court  also  may  exclude  the  witnesses  and  all  jurors  who 
are  not  sworn  to  try  the  cause.-" 

TRIAL    BY    JURY. 

A  person  accused  of  a  crime  has  a  right  to  a  trial  by  an 
impartial  and  unbiased  jury,^^  consisting  of  twelve  men. 
The  defendant  cannot  consent  to  a  less  number."     He  has 

i-tain  re  Begerow,  133  Cal.  349. 

15  Penal  Code    686. 

16  People  V.  Tarbox,   115   Cal.   61. 

17  People  V.  Hartman,  103  Cal.  242;  People  v.  Swaflord,  6& 
Cal.  223. 

18  People  V.  Hartman,  103  Cal.  243. 
i»  People  V.  Kerrigan,  73  Cal.  222. 

20  People  vs.  Sprague,  53  Cal.  491. 

21  People  V.  Miller,  125  Cal.  44;  People  v.  Suesser,  132  CaL 
634;  People  v.  Wells.  100  Cal.  227. 

w  People  V.  O'Nell,  48  Cal.  257;  People  v.  Deegan,  88  Cal. 
608. 


CONSTITUTIONAL  BIGHTS  OF  DEPENDANT.  55 

the  right  to  have  all  the  legal  formalities  in  the  drawing, 
summoning  and  impaneling  of  the  jury  observed. ^^  The 
defendant  may  waive  a  jury  in  misdemeanor  cases,^*  and 
in  felony  cases  he  may!  also  waive  a  jury  by  entering  a  plea 
of  guilty  upon  arraignment.^''  The  right  to  a  jury  trial 
extend  to  minors  committed  to  the  Whittier  school,-"  but 
not  to  trials  to  commit  to  an  industrial  school."  The  legis- 
lature may,  in  certain  classes  of  petty  offenses,  deny  the 
right.^®  The  defendant  is  not  entitled  to  any  particular 
juror,  he  is  only  entitled  to  a  lawful  jury.^°  Thus,  a  for- 
eigner has  no  right  to  a  jury  composed  of  one-half  aliens.'" 

TO    BE    CONFRONTED   BY    WITNESSES. 

The  accused  must  be  confronted  by  the  witnesses  against 
him.  Statutes  impairing  this  right  must  be  construed 
always  in  his  favor, ^^  and  every  requirement  of  the  law 
must  be  observed  in  taking  depositions.^^  Reporter's 
notes  of  the  testimony  given  at  a  former  trial  cannot  be 
used  against  the  defendant.^^  This  constitutional  guar- 
antee is  not  violated,  however,  by  an  act  authorizing 
depositions  to  be  taken  conditionally  on  behalf  of  the 
defendant,^*  nor  by  depositions  taken  at  the  preliminary 
examination  before  a  magistrate.^^  The  rule  does  not 
exclude  the  evidence  in  perjury  cases  that  certain  testi- 
mony was  given  upon  the  trial  where  the  alleged  perjury 
was  committed,  if  the  defendant  is  confronted  by  the  wit- 

23  People  V.  CofEman,    24    Cal.    231;     Bruner    v.    Superior 
Court,  92  Cal.  249;  People  v.  Compton,  132  Cal.  484. 

24  Taylor  v.  Reynolds,  92  Cal.  577. 

I  25  People  V.  Lennox,  67   Cal.   113;    People  v.   Noll,  20  Cal. 

164. 

26  Ex  parte  Becknell,  119  Cal.  496. 

27  People  V.  Ah  Peen,  51  Cal.  280. 

28  In  re  Fife,  110  Cal.  9;  Ex  parte  Wong  You  Ting,  106 
Cal.  296.  I 

21'  People  V.  Lee,  17  Cal.  76;  People  v.  Arceo,  32  Cal.  40; 
People  V.  Durrant,  116  Cal.  199;  People  v.  Hickman,  113 
Cal.  80;    People  v.  Searcey,  121  Cal.  1. 

30  People  V.  Chin  Mook  Sow,   51  Cal.  59. 

31  People  V.  Ward,  105  Cal.  652. 

32  People  V.  Mitchell,  64  Cal.  87. 

33  People  V.  Chung  Ah  Chune,  57  Cal.  567. 

34  Willard  v.  Superior  Court,  82  Cal.  460. 

35  People  V.  Oiler,  66  Cal.  101;   People  v.  Chin  Hane,  108 
Cal.  597. 


56  CRIMINAL  LAW  AND  PROCEDURE. 

nesses  who  testify  to  what  evidence  was  given  in  such 
case.^*  But  written  statements  by  a  witness  are  not 
admissible."  The  defendant  may  waive  his  right  to  be 
confronted  with  the  witnesses,  and  may  introduce  testi- 
mony of  deceased  or  absent  witnesses,  whether  given  on 
the  preHminary  examination  or  on  a  former  trial.'' 

WITNESS   AGAINST    HIMSELF. 

A  defendant,  accused  of  a  crime  in  this  state,  has  a  con- 
stitutional right  to  be  protected  from  forced  examination 
as  to  any  matters  concerning  which  he  has  not  voluntarily 
testified  in  his  own  behalf;  and  no  evidence  can  be  wrung 
from  him.  He  does  not  waive  the  right  by  taking  the 
stand  as  a  witness ;  nor  can  he  bind  himself  in  advance  to 
waive  it.  He  may  claim  his  right  when  the  occasion 
arises.^*  But  a  defendant  may  be  compelled  to  stand  up 
for  the  purpose  of  identification.*** 

RIGHT    TO    COUNSEL. 

This  right  is  not  violated,  however,  by  the  absence  of 
the  attorney  upon  a  ruling  on  demurrer,*^  upon  rendering 
the  verdict,*^  nor  upon  giving  instructions  when  he  cannot 
be  found.*''  The  right  to  counsel  may  be  waived  by 
defendant,**  as  where  he  is  fully  informed  as  to  this  right 
and  consents  to  the  examination  without  counsel.*'  The 
right  includes  the  right  to  have  the  benefit  of  a  complete 
discussion  by  counsel  of  all  matters  of  law  and  evidence 
embraced  in  the  case.  The  court  has  no  discretionary 
power  over  this  right,  but  its  exercise  is  subject  to  judicial 
control  to  the  extent  that  is  necessary  to  prevent  its  abuse. 
It  is  very  difficult,  however,  for  the  judge  to  determine 
what  effect  a  certain  line  of  argument  may  have  upon  a 

36  People  V.  Lem  You,  97  Cal.  224. 

37  People  V,  Elyea,  14  Cal.  145. 

38  People  V.  Bird,  132  Cal.  261. 

39  People  V.  Arringhini,  122  Cal.  121. 
*o  People  V.  Goldenson,  76  Cal.  329. 
41  People  V.  Rice,  73  Cal.  220. 

■*2  People  V.  Bennett,  65  Cal.  267. 

43  People  V.  Mayes,  113  Cal.  618;   People  v.  Trim,  37  Cal. 

274. 
"  People  V.  Young,  108  Cal.  8. 

40  People  V.  Elliott,  80  Cal.  296. 


CONSTITUTIONAL  BIGHTS  OF  DEFENDANT.  57 

jury,  or  what  period  may  be  necessary  to  enable  counsel  to 
present,  in  the  aspect  deemed  by  them  important,  the  case 
of  their  client.  Where  the  court  interferes  in  such  mat- 
ters, and  imposes  limitation  upon  counsel  against  their  con- 
sent, it  is  done  at  the  risk  of  depriving  the  defendant  of 
his  constitutional  right  of  a  full  defense.*** 

PRESENCE    OF    THE    ACCUSED    AT   THE   TRIAL. 

In  felony  cases  the  accused  must  be  personally  present 
at  the  arraignment/'  at  the  trial*^  when  the  verdict  is 
received,"*"-*  at  the  judgment,'^"  but  not  in  the  appellate 
court.^^  The  presence  of  the  accused  is  not  necessary  at 
the  trial  of  a  misdemeanor  case,^-  and  the  court  has  no 
power  to  declare  his  recognizance  forfeited  if  he  is  rep- 
resented by  an  attorney  in  his  stead. ^^  In  felony  cases 
the  accused  is  required  to  be  present  during  the  whole 
trial."  But  his  absence  for  an  inappreciable  space  of 
time  is  not  error,^^  and  a  judgment  may  be  entered  nunc 
pro  tunc  in  his  absence  if  he  was  present  when  it  was  ren- 
dered.^** A  plea  of  "  not  guilty  "  may  be  entered  in  his 
absence,^^  and  a  day  set  for  pronouncing  sentence.^®  His 
presence  is  not  necessary  at  the  issuing  of  a  warrant  of 
execution,^'*  but  his  absence  while  the  jury  is  making  a 
view  of  the  locus  in  quo,^^  or  upon  rendering  the  verdict, 
makes  the  conviction  void.**^     If,   however,  the  defendant 

46  People  V.  Keenan,  13  Cal.  581;  People  v.  Green,  99  Cal. 

567. 
•47  Penal  Code   977. 

48  Penal  Code   1043. 

49  Penal  Code   1147. 

50  Penal  Code   1194. 

51  Penal  Code   1255. 

52  People  V.  Ebner,  23  Cal.  159. 

53  People  V.  Budd,   57   Cal.  351. 

64  People  V.  Kohler,  5  Cal.  72;   People  v.  Higgins,  59  Cal. 

358;   People  v.  Holmes,  118  Cal.  444. 
55  People  V.  Bush,  68  Cal.  623. 
50  People  V.  Lennon,  79  Cal.  631. 

57  People  V.  Thompson,  4  Cal.  239. 

58  People  V.  Galvin,  9  Cal.  116. 

50  People  V.  Flannelly,  128  Cal.  85. 

60  People  V.  Lowrey,  70  Cal.  193;    People  v.  Bush,  68  Cal. 

623;  People  v.  Bush,  71.  Cal.  606;  People  v.  Milhner,  122 

Cal.  184. 
«i  People  V.  Beauchamp,  49  Cal.  41;   People  v.  Higgins,  59 

Cal.  358;  People  v.  Jung  Qung  Sing,  70  Cal.  472. 


58  CRIMINAL  LAW  AND  PROCEDURE. 

returns  before  the  jury  is  discharged,  his  absence  is  imma- 
terial."^ Where  the  court  has  given  an  instruction  in  the 
absence  of  the  accused,  and  then  called  the  jury  back  and 
instructed  them  to  disregard  it,  and  instructed  them  again 
in  his  presence,  it  was  held  to  be  no  infringement  on  his 
rights.*^  Where  he  objects  that  he  was  not  present  at  the 
trial,  the  defendant  must  prove  it.®*  Error  must  affirma- 
tively appear,  and  if  there  is  nothing  in  the  record  to  the 
contrary,  his  presence  will  be  presumed. ''^  A  general 
statement  in  the  bill  of  exceptions  that  the  prisoner  was 
absent  will  not  invalidate  a  conviction,^®  and  it  must  be 
shown  that  the  defendant  was  absent  from  his  own  trial; 
the  statement  that  he  was  absent  from  the  trial  is  not  suf- 
ficient.®^ The  recitals  in  the  judgment  are  sufficient  proof 
of  his  presence  wheri  no  showing  to  the  contrary  is  made." 
The  record  which  recites  that  the  defendant  and  his  attor- 
ney were  present  at  every  stage  of  the  trial  is  sufficient.®* 

PRESENCE    OF    THE    JUDGE. 

The  judge  is  a  component  part  of  the  court;  there  can 
be  no  court  without  his  presence,  and  all  acts  done  in  his 
absence  are  done  in  the  absence  of  the  court."  His 
absence  during  a  part  of  the  trial  is  ground  for  a  new 
trial. '^^  A  view  by  the  jury  of  the  locus  in  quo  is  a  part 
of  the  trial,  and  the  judge  must  be  present.''^ 

DUE   PROCESS  OF   LAW. 

Due  process  of  the  law,  in  each  particular  case,  means 
such  an  exertion  of  the  powers  of  the  government  as  the 

82  People  V.  Miller,  33  Cal.  99. 

63  People  V.  Soto,  65  Cal.  621. 

64  People  V.  Stuart,  4  Cal.  218. 

65  People  V.  Cline,  83  Cal.  374;  People  v.  Sing  Lum,  61 
Cal.  538;  People  v.  Johnson,  88  Cal.  175;  People  v.  Bar- 
ton, 88  Cal.  178;  People  v.  Huff,  72  Cal.  117;  People  v. 
Collins,  105  Cal.  504. 

66  People  V.  Bealoba,  17  Cal.  389;  People  v.  Holmes,  118 
Cal.  449. 

67  People  V.  O'Brien,  88  Cal.  483. 

68  People  V.  Rozelle,  78  Cal.  84. 

69  People  V.  Jung  Qung  Sing,  70  Cal.  469. 

70  People  V.  Tupper.  122  Cal.   424. 

71  People  V.  Blackman,  127  Cal.  248. 

72  People  V.  Yut  Ling,  74  Cal.  569. 


CONSTITUTIONAL  RIGHTS  OF  DEFENDANT.  59 

settled  maxims  of  law  permit  and  sanction,  and  under 
such  safeguards  for  the  protection  of  individual  rights 
as  those  maxims  prescribe  for  the  class  of  cases  to  which 
the  one  in  question  belongs."  It  has  been  repeatedly  held 
that  a  prosecution  by  indictment  or  information  is  due 
process  of  law/* 

RIGHT   TO   APPEAR   WITHOUT   IRONS. 

A  prisoner  upon  his  trial  in  court  is  in  the  custody  of 
the  law,  and  under  the  immediate  control  of  and  subject 
to  the  orders  of  the  court.  Any  order  or  action  of  the 
court  which,  without  evident  necessity,  imposes  physical 
burdens,  pains  and  restraints  upon  a  prisoner  during  the 
progress  of  his  trial,  in-^vitably  tends  to  confuse  and  em- 
barrass his  mental  faculties  and  thereby  to  abridge  and 
prejudicially  affect  his  constitutional  rights  of  defense; 
and  especially  impair  his  privilege  of  becoming  a  compe- 
tent witness  and  testifying  in  his  own  behalf.  To  require 
a  prisoner  during  the  progress  of  his  trial  before  the  court 
and  jury  to  remain  with  chains  and  shackles  upon  him, 
without  evident  necessity  for  such  restraint,  for  the  pur- 
pose of  securing  his  presence  for  judgment,  is  a  direct, 
violation  of  both  common  and  statutory  law.''* 

NO    RIGHT    TO    A    PARTICULAR    REMEDY. 

There  is  no  such  thing  as  a  vested  right  to  any  particular 
remedy.  The  remedy  may  be  changed  at  the  will  of  the 
legislature.''®  A  change  in  procedure  is  not  an  ex  post 
facto  law."  Neither  is  the  code  which  makes  a  second 
conviction  of  petit  larceny  a  felony,  where  the  second 
crime  was  committed  after  the  code  was  enacted.^*  An 
amendment  of  the  statute  between  the  time  of  the  commis- 
sion of  the  oflFense  and  the  conviction  with  a  saving  clause 

73  Ex  parte  Ah  Fook,  49  Cal.  402. 

74  People  V.  Carlton,  57  Cal.  559;  People  v.  Flannelly,  128 
Cal.  83;  Kalloch  v.  Superior  Court,  56  Cal.  229;  Hurtado 
V.  California,  110  U.  S.  520. 

75  People  V.  Harrington,  42  Cal.  168. 
70  People  V.  Campbell,   59   Cal.   243. 

77  People  V.  Mortimer,  46  Cal.  114. 

78  Ex  parte  Guiterrez,  45  Cal.  429;  People  v.  Stanley,  47 
Cal.  119;   People  v.  King,  64  Cal.  338. 


60  CRIMINAL  LAW  AND  PROCEDURE. 

does  not  change  the  punishment."  And  a  general  saving 
clause  has  the  same  efficacy  as  a  special  clause  expressly 
inserted  in  a  particular  statute.®"  An  amendment  of  a 
statute  as  to  penalty  affects  only  when  the  crime  was  com- 
mitted after  its  passage.*^ 

JEOPARDY. 

No  person  can  be  subjected  to  a  second  prosecution  for  a 
public  offense  for  which  he  has  been  once  prosecuted  and 
convicted  or  acquitted.®^  The  question  arising  out  of  the 
constitutional  guarantee  is  usually  upon  what,  in  law, 
amounts  to  jeopardy;  of  course,  a  conviction  or  an  acquit- 
tal of  the  offense  charged  is  a  bar  in  all  cases  to  a  subse- 
quent prosecution;  and  a  plea  of  guilty  operates  as  a  con- 
viction even  though  no  judgment  has  been  pronounced 
upon  the  plea.*^  It  may  be  said  generally  that  jeopardy 
attaches  in  all  cases  when  a  trial  has  been  had  before  a 
competent  court  and  jury  upon  a  valid  indictment,  unless 
the  jury  be  discharged  from  rendering  a  verdict  by  legal 
necessity  or  by  consent  of  the  defendant.®*  But  the  jury 
must  have  been  impaneled  and  sworn,®'  and  the  discharge 
before  verdict  must  have  been  for  a  cause  within  the  court's 
control,®*  or  without  the  consent  of  the  defendant.®'  The  dis- 
charge by  the  sheriff,  under  the  orders  of  the  court,  where 
the  jury  failed  to  agree,  is  not  jeopardy;®®  nor  in  any  case 
where  the  jury  fails  to  agree,®®  even  when  their  failure  was 

79  People  V.  Gill,  7  Cal.  357. 

80  People  V.  McNulty,  93  Cal.  429. 

81  People  V.  Vincent,  95  Cal.  429;  People  v.  Durrant.  116 
Cal.  208;   People  v.  McNulty,  93  Cal.  427. 

82  Penal  Code   687. 

83  People  V.  Goldstein,   32   Cal.  432. 

84  People  V.  Horn,  70  Cal.  17;  People  v.  Gordon,  99  Cal. 
231;  People  v.  Roberts,  114  Cal.  69;  People  v.  Smalling, 
94  Cal.  115;  People  v.  Hunckeler,  48  Cal.  334;  Ex  parte 
Hartman,  44  Cal.  32;  People  v.  Webb,  38  Cal.  467;  Ex 
parte  McLaughlin,  41  Cal.  215;  People  v.  Curtis,  76  Cal. 
59. 

85  People  V.  Hawkins,  127  Cal.  372. 
80  People  V.  Webb,  38  Cal.  467. 

87  People  V.  Curtis,  76  Cal.  57;  People  v.  Arnett,  129  Cal. 
30&. 

88  People  V.  Shotwell,  27  Cal.  394. 

80  People  V.  Cage,  48  Cal.  323;  People  v.  Smalling,  94  Cal. 
112;  People  v.  Green,  100  Cal.  142;  People  v.  Smith,  121 


CONSTITUTIONAL  RIGHTS  OF  DEFENDANT.  61 

based  on  erroneous  notions,""  and  when  rendered  necessary 
by  sickness  of  a  juror.®^  But  the  discharge  by  an  erron- 
eous acquittal  by  the  court  directing  the  jury  to  acquit,  will 
prevent  a  new  trial  and  constitute  jeopardy.®^  So  will  the 
discharge  of  an  accomplice  to  be  a  witness  operate  as  a  bar 
to  another  prosecution  against  him.®^  But  a  plea  of  once 
in  jeopardy  cannot  be  raised  upon  an  examination  and  dis- 
charge by  a  magistrate,"*  or  upon  a  conviction  under  a 
municipal  ordinance,  where  the  same  facts  constitute  a  crime 
under  the  state  law."^  If  two  offenses  do  not  possess  the 
same  elements  it  would  seem  that  both  may  be  punished. 
A  putting  in  jeopardy  for  one  act  or  a  conviction  for  one 
act,  is  never  held  to  bar  a  prosecution  for  another  separate 
and  distinct  one,  merely  because  they  are  so  closely  con- 
nected in  point  of  time  that  it  is  impossible  to  separate  the 
evidence  relating  to  them  ;"®  but  this  doctrine  does  not  per- 
mit the  splitting  of  crimes  or  dividing'  a  single  act  into 
separate  parts  for  the  purpose  of  prosecution."^  Jeopardy 
does  not  attach  upon  a  dismissal  of  a  jury  with  the  defend- 
ant's consent,"^  or  where  a  discharge  of  the  jury  is  rendered 
necessary  by  the  escape  of  the  accused,  as  his  own  act 
creates  the  necessity,""  or  where  the  acquittal  is  by  reason 
of  a  material  variance  between  the  proof  and  the  indict- 
ment,"" But  an  acquittal  by  reason  of  an  immaterial  vari- 
ance  is   an   acquittal    and    a    bar."^     Thus    the    trial    for 

Cal.    355;    People    v.    Majors,     65     Cal.     138;    Ex   parte 

McLaughlin,  41  Cal.  211;   People  v.  James,  97  Cal.  400; 

People  V.  Soto;  65  Cal.  621. 
so  People  V.  James,  97  Cal.  400. 
»i  People  V.  Ross,  85  Cal.  383. 
'•)2  People  V.  Roberts,  114  Cal.   67;    People  v.  Terrill,  132: 

Cal.  501. 
93  People  V.  Bruzzo,  24  Cal.  41. 
9*  Ex  parte  Fenton,  77  Cal.  183. 
95  Ex  parte  Hong  Shen,  98  Cal.  681. 
90  People  V.  Majors,  65  Cal.  138;  People  v.  Bentley,  77  Cal. 

9;    People  v.  Defoor.  100  Cal.  155. 

97  People  V.  Stephens,  79   Cal.   429;    People  v.  Willard,   92 
Cal.  488;   People  v.  Defoor,  100  Cal.  155. 

98  People  V.  Curtis,  76  Cal.  57. 

99  People  V.  Higgins,   59   Cal.  358.  ^ 

100  People!  V.  McNealy,  17  Cal.  332;  People  v.  Orelleus,  79 
Cal.  180;   People  v.  Sierra  Buttes,  etc.,  Co..  39  Cal.  511. 

101  People  V.  Hughes,  41  Cal.  234;  People  v.  Leoilg  Quong, 
60  Cal.  108;  People  v.  Tonielli,  81  Cal.  280;  People  v.. 
Arras,   89   Cal.   226. 


62  CRIMINAL  LAW  AND  PROCEDURE. 

defrauding  one  person  is  not  jeopardy  to  a  trial  for 
defrauding  him  and  another  jointly  ;^°^  nor  is  the  pendency 
of  an  indictment  any  ground  for  plea  in  abatement  to 
another  indictment  in  the  same  court  for  the  same  cause. ^"^ 
The  plea  cannot  be  based  upon  a  new  trial  granted  for 
errors  on  appeal,^"*  and  even  though  the  defendant  did  not 
request  the  new  trial, ^"'^  and  the  reversal  was  simply  upon 
the  failure  to  find  on  the  plea  of  jeopardy,^"®  or  the  trial 
court  ordered  a  new  trial  on  its  own  motion. ^"^  Where  the 
plea  is  based  on  a  conviction  under  an  insufficient  informa- 
tion which  is  reversed  and  dismissed,^***  or  upon  a  dis- 
charge from  custody  for  a  failure  to  indict,  it  will  be 
denied.^"®  A  new  trial  may  be  had  on  the  same  indict- 
ment, where  the  conviction  is  set  aside  bn  the  ground  that 
it  was  not  upon  the  offense  charged  in  the  indictment."" 
If  the  dismissal  is  for  a  defective  information  it  is  not 
jeopardy,"^  and  the  setting  aside  of  an  indictment  is  no 
bar  to  a  further  prosecution,"^  or  to  submission  of  the 
matter  to  another  grand  jury,""  or  to  a  subsequent  prose- 
cution under  an  indictment  found,  after  a  demurrer  is  sus- 
tained to  an  information,  and  a  new  information  ordered 

102  People  V.  Cummings,  123  Cal.  269;  People  v.  Reed,  70 
Cal.  529. 

103  Kalloch  V.  Superior  Court,  56  Cal.  236. 

104  People  V.  Olwell,  28  Cal.  456;  People  v.  Barric,  49  Cal. 
346;  People  v.  Travers,  77  Cal.  178;  People  v.  Lee  Yune 
Chong,  94  Cal.  379;  People  v.  Bennett,  114  Cal.  59; 
People  V.  Majors,  65  Cal.  138;  People  v.  Smith,  121 
Cal.  358;  People  v.  Travers,  73  Cal.  580;  People  v. 
March,  6  Cal.  543;  People  v.  Hardisson,  61  Cal.  378; 
People  V.  Carty,  77  Cal.  213. 

,    105  People  V.  Travers,    77    Cal.    178;    People    v.    Lee    Yune 
Chong,  94  Cal.  379. 
lofi  People  V.  Tucker,  117   Cal.  229. 

107  People  V.  Barric,  49  Cal.  346;  People  v.  Travers,  77 
Cal.  178;   People  v.  Lee  Yune  Chong,  94  Cal.  379. 

108  People  V.  Schmidt,  64  Cal.  260;  People  v.  Wickham, 
116   Cal.   384. 

ion  Ex  parte  Cahill,  52  Cal.  463;  Bx  parte  Clark,  54  Cal. 
416;   Kalloch  v.  Superior  Court,  56  Cal.  235. 

110  People  V.  Ammerman,   118   Cal.    28. 

111  People  V.  Ammerman,   118   Cal.   23. 

112  People  V.  Campbell,  59  Cal.  243;  People  v.  Breen,  130 
Cal.  72;    Patterson  v.  COnlan,  123  Cal.  453. 

i« 8  People  V.  Varnum,  53  Cal.  630;  People  v.  Ammerman, 
118  Cal.  28. 


CONSTITUTIONAL  RIGHTS  OF  DEFENDANT.  63 

filed. ^^''  It  does  not  embrace  proceedings  had  under  an 
insufficient  information,^^'  and  cannot  be  predicated  on  an 
information  dismissed  for  defects  even  after  the  jurv  is 
sworn,  and  before  any  evidence  is  introduced. ^^®  But 
where  a  demurrer  is  sustained  to  an  information,  and  there 
is  no  direction  by  the  court  for  a  new  information  to  be 
filed,  it  bars  another  prosecution  for  the  same  offense."' 
The  plea  cannot  be  predicated  on  a  dismissal  of  a  prosecu- 
tion in  one  county  to  be  commenced  in  another  county 
carved  out  of  the  old  one.^^®  In  short,  in  no  case  is  a  dis- 
missal of  an  indictment  jeopardy ,^^*  even  where  a  trial  has 
been  had  under  a  defective  information.^^"  It  cannot  be 
predicated  on  void  proceedings^^^  or  a  void  conviction.^^^ 
Statutes  increasing  the  punishment  for  a  second  offense 
does  not  put  the  accused  twice  in  jeopardy.^^^  The  plea  is 
not  tenable  when  the  essential  elements  of  the  second 
offense  are  not  the  same.^^*  The  offense  charged  must  be 
the  same  in  law  and  in  fact  as  the  one  upon  which  the 
conviction  or  acquittal  was  had.^^'  A  previous  conviction 
which  charges  a  similar  offense  is  not  putting  in  jeop- 
ardy."* 

CONVICTION    OF    THE    LESSER    OFFENSE. 

Upon  a  conviction  of  a  lesser  offense,  included  in  the 
indictment,  the  defendant  upon  a  new  trial  being  granted, 
cannot  be  tried  for  a  greater  offense  than  the  one  of  which 

114  People  V.  Whelan,  117  Cal.  559;  People  v.  Ammerman, 
118   Cal.  28. 

115  People  V.  Clark,  67  Cal.  99;  People  v.  Larson,  68  Cal. 
19. 

116  People  V.  Ammerman,  118  Cal.  23. 

117  Penal  Code  1008;  People  v.  Jordan,  63  Cal.  219;  Peo- 
ple V.  O'Leary,  77  Cal.  34;  People  v.  Ammerman,  118 
Cal.  27. 

118  People  V.  Stokes,   103    Cal.   193. 

110  Penal  Code  999;  People  vs.  Campbell,  59  Cal.  243; 
People  V.   Mooney,   132   Cal.   16. 

120  People  V.  Eppinger,  109  Cal.  294;  People  v.  Larson,  68 
Gal.   18. 

121  People  V.  Woods.  84  Cal.   441. 

122  People  V.  Hamberg,    84    Cal.    468. 

la.'?  People  v.  Stanlev,  47  Cal.  113;  People  v.  Lewis,  64  Cal. 
404;    People  v.   Eppinger,   109  Cal.   297. 

124  People  V.  Bentley,  77  Cal.  7. 

125  People  V.  Helbing,    61    Cal.    620. 
i2fl  People  V.  Lewis,    64   Cal.    401. 


64  CRIMINAL  LAW  AND  PROCEDURE. 

he  was  convicted,^^^  even  though  the  conviction  be  set 
aside  on  the  defendant's  own  motion. ^^*  And  if  a  new 
trial  be  granted  the  defendant  may  be  tried  only  for  the 
degree  of  which  he  was  convicted.  This  is  upon  the  theory 
that  the  conviction  of  the  lesser  is  an  acquittal  of  the 
greater,  and  to  try  the  defendant  for  a  crime  of  which  he 
was  acquitted  would  be  to  put  him  twice  in  jeopardy.^" 
But  a  conviction  of  murder  of  the  second  degree  is  not  a 
bar  to  a  subsequent  conviction  of  murder  of  the  first 
degree  on  the  re-trial,  since  murder  of  both  degrees  is  but 
one  crime,  consisting  of  the  unlawful  killing  of  a  human 
being  with  malice  aforethought.^''" 

And  an  acquittal  or  conviction  of  a  minor  offense  is  a 
bar  to  another  prosecution  for  the  same  act  charged  as  a 
higher  offense,  wherever  the  defendant  on  the  latter  might 
be  legally  convicted  of  the  former,  had  there  been  no 
other  prosecution.^^^  But  where  the  jury  is  discharged 
because  the  evidence  shows  a  higher  degree  of  crime  than 
the  crime  for  which  the  defendant  was  accused,  it  is  an 
acquittal. ^^^  On  a  prosecution  for  receiving  stolen  goods 
from  several  persons,  an  acquittal  of  receiving  goods  at 
the  same  time  from  one  of  such  persons,  is  a  good  plea 

127  People  V.  Webb,  38  Cal.  478;  People  v.  Gordon,  88  Cal. 
422;   People  v.  Backus.  5  Cal.  275;    People  v.  Apgar,  35 

Cal.  391;  People  v.  Schmidt,  64  Cal.  264. 

128  People  V.  Apgar,  35  Cal.  389;  People  v.  Gordon,  99  Cal. 
230;  People  v.  Muhlner,  115  Cal.  307;  People  v.  Defoor, 
100  Cal.  158;   People  v.   Schmidt,  64  Cal.  264. 

120  People  V.  Gilmore,  4  Cal.  376;  People  v.  Backus.  5  Cal. 
278;  People  v.  Apgar,  35  Cal.  391;  People  v.  Schmidt, 
64  Cal.  264;  People  v.  Gordon,  99  Cal.  230;  People  v. 
Defoor,   100  Cal.   158;    People  v.  Muhlner,  115   Cal.   307. 

130  People  V.  Keefer,  65  Cal.  235.  The  court  has  gone  so 
far  as  to  hold  in  People  v.  Carty.  77  Cal.  213.  that  a 
conviction  of  manslaughter  under  an  indictment  for 
murder,  reversed  on  appeal,  would  not  sustain  a  plea 
of  once  in  jeopardy  and  former  acquittal  upon  the  new 
trial  under  the  same  indictment.  This  decision  Is  based 
upon  People  v.  Keefer,  but  no  reasons  are  given  for 
this  radical  departure  from  the  established  authority. 

131  People  v.  Ny  Sam  Chung,  94  Cal.  304;  People  v.  Defoor, 
100   Cal.   158. 

182  People  V.  Hunckeler,  48  Cal.  331:  People  v.  Ny  Sam 
Chung,  94  Cal.  307;  People  v.  Smalling,  94  Cal.  H5; 
People  V.  Higgine,  59  Oal.  358. 


CONSTITUTIONAL  RIGHTS  OF  DEFENDANT.  66 

in    bar   to   a    prosecution    for    receiving   any   other    stolen 
goods  at  the  same  time.     It  is  only  one  offense;"^ 

PROCEEDINGS    UNDER    PLEA. 

The  plea  of  once  in  jeopardy  to  be  of  avail  must  be 
pleaded  by  the  defendant/^*  and  is  insufficient  unless 
specially  pleaded. ^^^  It  must  be  entered  on  the  minutes 
of  the  court. ^^^  '  But  upon  a  discharge  of  the  jury  for 
failure  to  agree  it  is  not  necessary  for  the  record  to  show 
the  grounds  of  discharge.^^^  Under  a  plea  of  not  guilty 
the  jury  must  render  a  verdict  also  upon  the  plea  of  once 
in  jeopardy. ^^^ 

PRESUMPTION  OF  INNOCENCE. 

Upon  entering  a  plea  of  not  guilty  the  presumption  of 
innocence  arises  in  favor  of  the  defendant  which  accom- 
panies him  throughout  the  trial/^"  and  does  not  cease 
upon  the  submission  of  the  cause  to  the  jury,^*"  but  fol- 
lows the  jury  on  its  retirement  to  consider  the  verdict,  and 
will  avail  to  acquit  unless  it  be  overcome  by  sufficient  proof 
of  guilt.  The  evidence  must  be  examined  by  the  light  of 
that  presumption,  and  unless  the  evidence  is  sufficiently 
strong  to  overcome  it,  the  defendant  is  entitled  to  an 
acquittal. ^*^  It  does  not  cease  to  operate  until  the  jury  has 
reached  the  conclusion  of  the  guilt  of  the  defendant  beyond 
a  reasonable  doubt."-  No  presumption  is  raised  against 
the  defendant  by  law,  if  he  does  not  attempt  to  explain 
suspicious  circumstances.  And  in  no  case,  except  where 
the  burden  of  proof  shifts  to  the  defendant,  is  it  incum- 
bent upon  him  to  explain  anything.  He  has  a  right  to 
stand,  mute  and   demand  that  the   people   make   the   case 

163  People  V.  Willard,   92  Cal.   482. 

134  People  V.  Bennett,    114    Cal.    56. 

135  People  V.  Lee   Yune   Chong,   94   Cal.   379. 
130  People  V.  O'Leary,    77    Cal.    32. 

13T  People  V.  Greene,    100    Cal.    140. 

138  People  V.  Hamberg,  84  Cal.   468;    People  v.  Tucker,  115 
Cal.  339. 

139  People  V.  Winthrop,   118   Cal.   85. 

140  People  V.  McNamara,    94    Cal.    514;    People    v.    O'Brien, 
106   Cal.  104. 

1"  People  V.  Winthrop,    118    Cal.    85. 
142  People  V.  Arlington,  131  Cal.  231. 


66  CRIMINAL  LAW  AND  PROCEDURK. 

against  him  beyond  a  reasonable  doubt."'  It  is  the  only  pre- 
sumption that  is  allowable  in  criminal  cases,^**  and  is  not 
overcome  by  another  presumption."'  There  cannot  be  two 
presumptions  standing  together,  one  for  the  guilt  and  the 
other  for  the  innocence  of  the  accused."'  Consequently 
the  presumption  of  knowledge**^  of  the  continuance  of  a 
fact  once  shown  to  exist ;""  of  the  continuance  of  life,""  or 
of  marriage,^""  are  all  overcome  by  the  presumption  of  inno- 
cence. 

RIGHT  TO  BAIL. 

Under  our  constitution  bail  is  permitted  in  all  cases 
before  conviction,  unless  for  capital  offenses,  when  the 
proof  of  guilt  is  evident  or  the  presumption  great.^'*  It 
is  a  matter  of  discretion  in  all  cases  where  the  punishment 
is  death,  but  a  matter  of  right  in  all  other  cases.^"^  Upon 
an  application  for  bail  in  capital  cases  the  inquiry  which 
arises  is  upon  the  question  of  whether  the  proof  is  evident 
or  the  presumption  of  guilt  great.  Formerly  an  indictment 
was  regarded  as  a  mere  accusation  which  the  grand  jury 
ought  to  find,  if  probable  evidence  were  adduced  in  its 
support.  But  great  authorities  have  taken  a  more  merciful 
view  of  the  subject,  and  considering  the  ignominy,  the 
dangers  of  perjury,  the  anxiety  of  delay,  and  the  misery 
of  the  prisoner,  have  argued  that  the  grand  inquest  ought, 
as  far  as  evidence  before  them  goes,  to  be  convinced  of  the 
guilt  of  the  defendant.  An  indictment  for  capital  cases  of 
itself   furnishes  a  presumption   of  guilt  of  the  defendant 

143  People  V.  Streuber,   121   Cal.   431. 

1**  People  V.  Douglass,   100    Cai.    1;    People   v.    Strassman, 

112  Cal.  687. 
i-»5  People  V.  Sanders,  114  Cal.  216. 

146  People  V.  Roderigo,  49  Cal.  11;  People  v.  O'Brien,  130 
Cal.  1;  People  v.  Douglass,  100  Cal.  1;  People  v.  Strass- 
man, 112  Cal.  687;  Hunter  v.  Hunter,  111  Cal.  261; 
People  V.   Krusick,   93   Cal.   79. 

147  People  V.  Blackman,   127   Cal.   248. 

148  People  V.  Strassman,   112  Cal.   687. 

149  People  V.  Feilen,  58  Cal.  218;  White  v.  White,  82  Cal. 
448. 

150  Hunter  v.  Hunter,  111   Cal.   261. 

isi  Ex  parte  Strange,    59    Cal.    416;     People    v.    Tinder,    19 

Cal.  539. 
i-^i  People  V.  Tinder,  19  Cal.  539;   Ex  parte  Brown,  68  Cal. 

177. 


CONSriTUTIONAL  RIGHTS  OF  DEFENDANT.  67 

too  g^reat  to  entitle  him  to  bail  as  a  matter  of  rij^ht  under 
the  constitution.  It  creates  a  presumption  of  guilt  for  all 
purposes  except  the  trial  before  the  jury.  If  it  does  not 
furnish  such  a  presumption  it  will  not  justify  the  exaction 
of  bail  or  the  detention  of  the  defendant.  And  the  finding 
o^  the  grand  jury  cannot  be  reviewed  on  an  application  for 
bail  or  its  effect,  in  creating  such  a  presumption,  repelled  by 
affidavits  or  oral  testimony  as  to  guilt  or  innocence.*** 
After  an  examination  before  a  magistrate  where  the  evi- 
dence adduced  will  support  a  conviction,^'^*  or  the  evidence 
is  such  that  it  cannot  be  said  that  a  verdict  requiring  a 
capital  sentence  thereon  should  not  be  permitted  to  stand, 
the  application  for  bail  should  be  denied.^^'  But  in  mur- 
der cases  after  indictment  where  the  intent  to  kill  is  not 
shown,  bail  should  be  allowed."®  Upon  arrest  the  pris- 
oner must  be  taken  before  a  magistrate  in  the  county 
where  the  warrant  was  issued,^'*^  and  where  thp  offense  is 
not  punishable  with  death  he  may  be  taken  before  the  mag- 
istrate in  the  county  in  which  the  warrant  is  issued  or  in 
which  he  is  arrested,  for  the  purpose  of  getting  bail.  But 
he  cannot  in  any  case  be  taken  before  the  magistrate  of 
another  county."^  It  is  not  necessary  for  the  defendant 
to  sign  the  bail  bond,"®  nor  need  it  have  the  endorsement 
of  approval  if  the  sureties  justify.^®" 

TAKING  IN  CUSTODY  AFTER  ADMISSION  TO  BAIL. 

Upon  the  finding  of  an  indictment  for  a  felony  against 
a  person  released  on  bail,  taken  before  the  finding  of  the 
indictment  upon  the  examination  before  the  magistrate,  he 
may  be  arrested  on  a  bench  warrant  and  required  to  give 
bail  in  the  Superior  Court.^®*  It  is  proper  for  the  court 
to  order  the  defendant  into  custody  as  soon  as  the  trial  is 

153  People  V.  Tinder,   19   Cal.   542. 

154  In  the  Matter  of  Troia,  64  Cal.  152. 

155  Ex  parte  Curtis,  92   Cal.  188. 

156  Ex  parte  Wolff.  57  Cal.  94. 

157  Ex  parte  Hung  Sin,  54  Cal.  102;  People  v.  Fick,  89  Cal. 
144. 

158  Mansir  v.  Superior    Court.    65   Cal.    582. 

159  People  V.  Love,   19  Cal.  677. 

"^'j  People  V.  Penniman.  37   Cal.   271. 
161  Ex  parte  Cook,  35   Cal.   107. 


68  CRIMINAL  LAW  AND  PROCEDURE. 

commenced,"^  and  it  is  the  duty  of  the  court  to  order  the 
defendant  into  custody  upon  the  retirement  of  the  jury  to 
insure  his  presence  if  convicted.*"' 

AMOUNT    OF    BAIL. 

The  sole  purpose  of  requiring  bail  is  to  cause  the  appear- 
ance of  the  accused  to  answer  the  charge  against  him.  And 
the  extent  of  the  pecuniary  ability  of  a  prisoner  to  furnish 
bail  is  a  circumstance  among  other  circumstances  to  be  con- 
sidered in  fixing  the  amount,  but  is  not  in  itself  con- 
trolling.^^* The  amount  of  bail  is  usually  within  the  dis- 
cretion of  the  court  or  magistrate  fixing  it/""  and  will  not 
be  reviewed  by  an  appellate  court  unless  it  clearly  appears 
that  the  amount  fixed  is  excessive  per  se}^'* 

BAIL    AFTER    CONVICTION. 

After  conviction  of  an  oflfense  not  punishable  with  death, 
a  defendant  who  has  appealed  may  be  admitted  to  bail : 
(i)  as  a  matter  of  right  when  the  appeal  is  from  a  judg- 
ment imposing  a  fine  only;  and  (2)  as  a  matter  of  discre- 
tion in  all  other  cases.^®^  When  the  admission  to  bail  is  a 
matter  of  discretion,  the  court  or  officer  to  whom  the  appli- 
cation is  made  must  require  reasonable  notice  thereof  to  be 
given  to  the  district  attorney  of  the  county.^*'*  After  an 
indictment,  for  the  purposes  of  bail,  a  presumption  of  guilt 
arises  against  the  defendant.^"*'  It  arises  for  all  purposes 
except  for  that  of  a  trial  before  a  jury.*^''  Bail  after  con- 
viction is  a  matter  of  discretion,  not  of  right,  and  is  gen- 
erally not  allowed  ;^'^^  and  in  felony  cases  should  be  granted 

162  People  V.  Williams,  59  Cal.  674. 

163  People  V.  Beauchamp,  49  Cal.  41. 

164  Ex  parte  Duncan,  54  Cal.  75. 

165  People  V.  Duncan,  54  Cal.  75. 

166  In  re  Williams,  82  Cal.  183;  Ex  parte  Duncan,  54  Cal.  75. 

167  Penal  Code  1272. 

168  Penal  Code  1274. 

i6n  Ex  parte  Ryan,  44  Cal.  553;  In  re  Williams,  82  Cal. 
183;  Ex  parte  Duncan,  54  Cal.  75. 

"0  People  V.  Tinder,  19  Cal.  542. 

171  Ex  parte  Brown,  68  Cal.  176;  Ex  parte  Smith,  89  CaL 
79;  Ex  parte  Turner,  112  Cal.  629;  People  v.  Perdue, 
48  Cal.  552;  People  v.  January,  70  Cal.  35;  Ex  parte 
Voll,  41  Cal.  31;  Ex  parte  Hoge,  48  Cal.  5;  Ex  parte 
Smallman,  54  Cal.  36. 


ARSON.  69 

only  under  circumstances  of  an  extraordinary  character.^^* 
It  should  be  granted  when  it  appears  that  the  imprison- 
ment would  result  in  death."^  Application  for  bail  after 
conviction  should  be  made  in  the  first  instance  to  the  trial 
court,"*  and  it  will  not  be  granted  by  the  Supreme  Court  in 
the  first  instance."' 

i"2  Ex  parte  Smith,  89  Cal.  79;  Ex  parte  Turner,  112  Cal. 
629;:  Ex  parte  Marks,  49  Cal.  680;  People  v.  Booker,  51 
Cal.  317;  Ex  parte  Smallman,  54  Cal.  36;  Ex  parte 
Brown,  68  Cal.  183;   People  v.  Marshall,  59  Cal.  386. 

1"  Ex  parte  Azhderian,  123  Cal.  512. 

174  People  V.  Perdue,   48   Cal.   552. 

175  People  V.  January,  70  Cal.  34;  Ex  parte  Turner,  112 
Cal.   629. 


SPECIKIC    GRIMES, 


CHAPTER  IV. 


ABDUCTION. 

[Penal  Code,  sees.  265,  267.] 


DEFINED. 

Is  the  taking-  of  a  woman  unlawfully,  against  her  will, 
and  by  force,  menace  or  duress  compelling  her  to  marry  or 
be  defiled.^  But  the  crime  most  often  encountered  is  the 
taking  away  of  a  female  under  the  age  of  eighteen  years 
from  her  father,  mother,  guardian  or  other  person  having 
the  legal  charge  of  her  person  without  their  consent  for  the 
purpose  of  prostitution.^  If  with  the  consent  of  the  legal 
custodian,  or  there  is  no  legal  custodian,  the  crime  is 
seduction  under  Penal  Code,  section  266. 

PURPOSE    OF    THE    LAW. 

The  statute  against  the  abduction  of  females  under 
eighteen  years  from  their  custodians  is  intended  to  pro- 
tect the  chaste  and  reclaim  the  erring;  to  protect  parents 
and  guardians  in  the  custody  and  care  of  minors.^ 

THE  TAKING. 

While  the  taking  is  a  material  ingredient  of  the  ofTense, 
it  may  be  accomplished  when  the  girl  is  merely  induced,  or 
yields  to  the  persuasion  of  the  defendant  to  go  with  him^ 
Her  consent  is  immaterial  and  no  defense.  No  matter  how 
willingly  she  may  go,  the  crime  is  committed  if  she  is  taken 
without  the  consent  of  her  legal  custodian.  No  force  or 
violence  need  be  used.* 

1  Penal  Code  265. 

2  Penal  Code  267 

3  People  V.  Demousset,  71  Cal.  612;  People  v.  Fowler,  88 
Cal.  136;    People  v.  Cook.  61  Cal.  478. 

*  People  V.  Demousset,  71  Cal.  613;  People  v.  Marshall, 
59  Cal.  386;  People  v.  Cook,  61  Cal.  478;  People  t.  Fow- 
ler, 88  Cal.  136. 


72  CRIMINAL  LAW  AND  PROCEDURE. 

LEGAL    CUSTODIAN 

Is  the  person  having  actual  custody  of  the  child.  The 
father  has  by  law  the  legal  charge  of  the  persons  of  his 
children  unfil  they  arrive  at  the  age^of  majority.'  But 
when  the  minor  female  is  in  the  custody  of  her  mother,  the 
mother  is  legally  in  charge  of  the  person  of  her  daughter, 
and  it  is  no  defense  that  the  father-  had  the  better  right  to 
the  custody."  And  the  crime  is  consummated  even  when 
the  female  under  age  has  abandoned  her  home  and  fled 
from  her  guardianship,  for  she  is  in  contemplation  of  law 
in  charge  of  her  father.'' 

PREVIOUS    UNCHASTITY. 

The  gist  of  the  offense  is  the  taking  away  of  the  child 
against  the  will  of  her  lawful  custodian  for  the  purpose  of 
prostitution,  and  it  is  immaterial  that  she  had  been  pre- 
viously unchaste.* 

KNOWLEDGE  OF  AGE. 

It  is  likewise  no  defense  that  the  defendant  did  not 
know  the  girl  was  under  age.  One  who  violates  the  stat- 
utes acts  at  his  peril  and  cannot  defend  himself  on  the  plea 
of  ignorance  as  to  the  age  of  the  child.* 

EVIDENCE. 

The  family  Bible  may  be  introduced  to  prove  the  age  of 
the  female.^"  It  is  not  necessary  that  there  should  be 
express  testimony  to  show  that  the  purpose  of  the  taking 
was  to  make  the  girl  a  prostitute,  but  the  accused  is  to  be 
judged  by  acts  rather  than  words. ^^  Evidence  that  the 
girl  was  taken  by  a  procuress  to  a  house  of  prostitution, 
ostensibly  to  work  as  a  domestic  without  disclosing  to  the 
girl  or  to  her  father  the  character  of  the  place,  is  suffi- 

s  People  V.  Cook,  61  Cal.  478. 

6  People  V.  Fowler,  88  Cal.  136. 

7  People  V.  Cook,  61  Cal.  478. 

8  People  V.  Demousset,    71    Cal.    612;    People   v.    Cook,   61 
Cal.    478. 

e  People  v.  Fowler,  88  Cal.  136. 
10  People  V.  Slater,  119  Cal.  620. 
"  People  V.  Marshall,  59  Cal.  386. 


ABDUCTION.  73 

cient  to  warrant  a  conviction.'-  The  proof  of  legal  custody 
is  required  only  when  the  child  is  taken  from  some  person 
other  than  parent  or  guardian. ^^ 

INDICTMENT. 

It  is  not  necessary  to  allege  that  the  defendant  knew  the 
girl  was  under  eighteen  years  of  age,  nor  that  the  mother 
had  legal  charge  of  her  person.  An  allegation  of  the  tak- 
ing from  the  person  having  legal  charge  is  necessary  only 
when  the  female  is  taken  from  a  person  other  than  parent 
or  guardian.^* 

PENALTY. 

For  taking  a  woman  unlawfully  and  by  force,  menace  or 
duress,  compelling  her  to  marry  or  be  defiled,  imprisonment 
in  the  state  prison  from  two  to  fourteen  years.  For  taking 
a  female  under  the  age  of  eighteen  years  for  the  purpose  of 
prostitution,  -imprisonment  in  state  prison  not  exceeding 
five  years  and  a  fine  not  exceeding  one  thousand  dollars. 

FORM ABDUCTION. 

The  said  A  B  at  the  time  and  place  aforesaid,  a  certain 
woman,  to  wit,  C  D,  unlawfully,  feloniously  and  against 
her  will,  did  take  and  abduct,  and  her,  the  said  C  D 
unlawfully  and  feloniously  by  force,  menace  and  duress, 
did  compel  to  be  defiled  [or  to  marry  him  or  some  other 
person,  naming  him.] 

FORM — MINOR     FEMALE     FOR     PROSTITUTION. 

That  the  said  A  B  did  wilfully,  unlawfully  and  felo- 
niously take  away  one  R  K,  then  and  there  being  an  unmar- 
ried female  under  the  age  of  eighteen  years,  to  wit,  of  the 
age  of  —  years,  from  and  out  of  the  custody  of  M  K,  her 
mother  [or  other  legal  custodian,  stating  it]  without  the 
consent  and  against  the  will  of  her  said  mother,  for  the 
purpose  of  prostitution." 

12  Ex  parte  Estrado,  88  Cal.  316. 

13  Same  case. 

14  People  V.  Fowler,  88  Cal.  136;  Ex  parte  Estrado,  88  Cal. 
316. 

15  Pecp'.e  V.  Fo^\ler,  88  Cal.  136.  But  it  seems  that  when 
the  female  is  taken  from  some  one  other  than  parent  or 
guardian,  there  should  be  a  further  allegation  that  the 
person  from  whom  she  was  taken  had  the  legal  custody. 
Ex  parte  Estrado.  88  Cal.  316. 


CHAPTER  V. 


ABORTION. 

[Penal  Code,  sees.  274,  275.] 


DEFINED. 

It  is  the  providing,  supplying  or  administering,  or  pro- 
curing any  pregnant  woman  to  take  any  medicine,  drug 
or  substance,  or  the  using  or  employing  any  instrument  or 
other  means  whatever,  with  intent  thereby  to  procure  the 
miscarriage  of  such  woman,  when  the  same  is  not  necessary 
to  preserve  her  life  ;^  or  the  soliciting  of  or  taking  any  such 
medicine,  drug  or  substance,  or  the  submitting  to  such 
operation  by  a  pregnant  woman,  with  intent  thereby  to  pro- 
cure a  miscarriage,  when  the  same  is  not  necessary  to  pre- 
serve her  life.^  The  woman  is  a  competent  witness  to 
prove  not  only  the  fact  of  pregnancy,  but  all  the  circum- 
stances tending  to  show  it.  Her  uncorroborated  testimony 
is  not  sufficient  to  convict,  but  there  need  be  no  corrobora- 
tion of  the  particular  method  employed  to  produce  the 
abortion.  The  essential  element  is  the  criminal  intent  and 
evidence  tending  to  show  such  intent  is  a  sufficient  cor- 
roboration.' It  is  a  misdemeanor  to  sell  certain  poisonous 
stibstances  unless  to  be  used  for  a  legitimate  purpose.* 

PENALTY. 

For  procuring  an  abortion,  imprisonment  in  state  prison 
from  two  to  five  years ;  for  submitting  to  an  abortion,  from 
one  to  five  years. 

1  Penal  Code  274; 

2  Penal  Code  275. 

3  People  V.  Josselyn,   39  Cal.   393. 
♦  Statutes  1880,  p.  102. 


ABORTION.  75 

FORM FOR  PROCURING  ABORTION. 

Wilfully,  unlawfully  and  feloniously  did  provide,  supply 
and  administer  to  one  C  D,  a  pregnant  woman,  a  certain 
medicine,  drug  and  substance  [or  used  and  employed  upon 
one  C  D,  a  pregnant  woman,  a  certain  instrument,  to  wit: 

]  with  intent  thereby  to  procure  the  miscarriage  of 

the  said  C  D,  the  same  then  and  there  not  being  necessary 
to  preserve  the  life  of  the  said  C  D. 

FORM SUBMITTING    TO    ABORTION. 

Said  C  D,  being  then  and  there  a  pregnant  woman,  wil- 
fully, unlawfully  and  feloniously  did  solicit  and  take  a  cer- 
tain medicine,  drug  and  substance  [or  submitted  to  an 
operation]  with  intent  thereby  to  procure  a  miscarriage,  the 
same  then  and  there  not  being  necessary  to  preserve  the 
life  of  the  said  C  D. 

ACID,   see   THROWING    VITROL. 


CHAPTER  VI. 


ADULTERY. 

[Statutes.  1871-2.  p.  380.] 


DEFINED. 

It  is  the  offense  of  living  in  a  state  of  open  and  notorious 
cohabitation  and  adultery  and  is  a  misdemeanor.^  But  if 
two  persons,  each  being  married  to  another,  live  in  a  state 
of  open  and  notorious  cohabitation  and  adultery,  each  is 
guilty  of  a  felony.^  A  recorded  certificate  of  marriage  or 
a  certified  copy  thereof,  there  being  no  decree  of  divorce, 
proves  the  marriage.  Under  this  section  the  record  of  the 
marriage  certificate  being  proved  does  not  exclude  other  evi- 
dence in  proof  of  the  marriage.  And  evidence  of  witnesses 
may  be  introduced  to  that  effect.^  Adultery  was  not  a 
crime  at  common  law,  nor  is  it  under  the  statute.  It  is  the 
living  together  in  open  and  notorious  cohabitation  and 
adultery  that  is  criminal.  Mere  adultery  without  the  noto- 
rious cohabitation  does  not  constitute  the  offense.* 

PENALTY. 

If  a  misdemeanor,  a  fine  not  exceeding  one  thousand  dol- 
lars, or  imprisonment  in  the  county  jail  not  exceeding  one 
year,  or  both.  If  a  felony,  imprisonment  in  state  prison 
not  exceeding  five  years. 

FORM ADULTERY. 

That  the  said  A  B,  between  the  —  day  of ,  190 — , 

and  the  —  day  of ,  190 — ,  did  unlawfully,  wilfully  and 

feloniously  live  in  a  state  of  open  and  notorious  cohabitation 

1  People  V.  Gates,  46  Cal.  53. 

2  Statutes,  1871-2,  p.  380. 

3  People  r.  Gates,  46  Cal.  53. 

*  People  V.  Gates,  46  Cal.  53;   Ex  parte  Thomas,  103  Cal. 
497;    White  v.  White.  82  Cal.  449. 


ADULTERY.  77 

and  adultery  with  one  C  D,  and  the  said  A  B  not  being 
then  and  there  lawfully  married  to  the  said  C  D. 

FORM WHERE    EACH     IS     MARRIED. 

That  between  the  —  day  of ,  190 — ,  and  the  —  day 

of ,  190 — ,  the  said  A  B  being  then  and  there  married 

to  a  woman  other  than  C  D,  did  live  in  a  state  of  open  and 
notorious  cohabitation  and  adultery  with  said  C  D,  and  the 
said  C  D  being  then  and  there  married  to  another  than  the 
said  A  B,  and  the  said  A  B  and  the  said  C  D  not  being  then 
and  there  lawfully  married  to  each  other. 

ADVERTISEMENTS,    see    TRESPASSES. 


CHAPTER  VII. 


ARSON. 

[Penal  Code,  sees.  447-455.] 


DEFINED. 

Arson  is  the  wilful  and  malicious  burning  of  a  building 
with  intent  to  destroy  it.^ 

WHAT   CONSTITUTES  A   BUILDING. 

Arson  as  defined  by  the  common  law,  is  an  offense  against 
the  security  of  a  habitation  rather  than  against  the  prop- 
erty which  was  burned ;  but  under  the  code  the  scope  of  the 
definition  is  materially  extended.  Any  house,  edifice,  struc- 
ture, vessel  or  other  erection  capable  of  affording  shelter  to 
human  beings,  is  a  building  within  the  meaning  of  the  code. 
It  is  not  necessary  that  such  an  erection  had  been 
intended  or  used  as  a  habitation.  It  is  sufficient  if  it  is 
capable  of  affording  shelter  for  human  beings  ;^  or  is 
appurtenant  thereto  or  connected  with  an  erection  so 
adapted.^  Thus  where  a  fire  was  set  to  a  wine  cellar  so 
near  to  the  dwelling  house  that  the  flames  necessarily  com- 
municated with  and  destroyed  the  dwelling,  it  was  held  to 
be  a  burning  of  the  dwelling.* 

OWNERSHIP. 

A  person  cannot  be  guilty  of  arson  in  burning  his  own 
property  unless  there  be  a  qualified  property  in  another.  A 
building  to  be  the  subject  of  arson  must  be  at  least  in  the 
possession    or   occupancy   of   another   at   the   time   of   the 

1  People  V.  Fong  Hong,   120  Cal.  685;    People  v.   Mooney, 
127  Cal.  339. 

2  People  V.  Fisher,  51   Cal.   320. 

3  Penal  Code  448;  People  v.  Russell,  81  Cal.  617. 

4  People  V.  Hiltel,  131  Cal.  577. 


ARSON.  79 

burning."  But  the  ownership  of  title  is  immaterial  when 
the  possession  and  occupancy  is  in  another  f  and  in  such 
cases  the  landlord  may  be  guilty  of  arson  in  burning  the 
house.''  Where  occupied  by  a  tenant,  however,  the  build- 
ing may  be  considered  as  the  property  of  the  landlord  where 
the  offense  is  committed  by  a  person  other  than  the  owner ;' 
and  a  burning  by  the  tenant  under  such  circumstances  will 
be  arson.®  It  seems  that  the  husband  may  be  convicted  of 
arson  for  the  burning  of  a  building  belonging  to  his  wife." 

THE  BURNING. 

When  the  wood  of  the  house  is  charred  in  a  single  place 
so  as  to  destroy  any  of  its  fiber,  the  crime  is  complete, 
though  there  be  no  blaze  and  the  fire  is  extinguished.  But 
where  the  wood  is  only  blackened  and  no  fiber  destroyed 
there  is  no  burning  within  the  meaning  of  the  code  ;^^  and 
the  burning  must  be  of  the  building  or  some  part  of  it.^* 
But  this  may  be  accomplished  although  the  fire  is  set  to 
another  building  from  which  the  flames  necessarily  com- 
municated.^^ 

DEFRAUDING    THE    INSURER. 

W^hile  as  has  been  seen,  the  burning  of  one's  own  house 
is  not  arson,  yet  the  code  has  made  it  a  felony  to  burn  it 
with  intent  to  defraud  the  insurer.^*  The  guilt  in  such 
cases  does  not  depend  on  the  legal  obligation  of  the  policy, 
for  the  offense  is  complete  if  it  appears  that  a  policy  was 
delivered,  although  it  is  invalid  and  no  action  can  be  main- 

5  People  V.  Myers,  20   Cal.  76;    People  v.   De  Winton,  113 

Cal.  407. 
«  People  V.  Scott,  32  Cal.  200;    People  v.  Wooley,  44  Cal. 

494. 
"  People  V.  Fong  Hong,  120  Cal.  685. 

8  People  V.  Fisher,  51  Cal.  321. 

9  People  V.  Simpson,   50   Cal.   304. 
«     10  People  V.  Hiltel,  131  Cal.  577. 

'1  People  V.  Haggerty,   46   Cal.  355. 

12  People  V.  Simpson,   50  Cal.   304. 

13  People  V.  Hiitel  131  Cal.  577. 

14  Penal  Code  548;   People  v.  Schwartz,  32  Cal.  163;   People 
V.  Hughes.  29  Cal.  258. 


80  CRIMINAL  LAW  AND  PROCEDURE. 

tained  upon  it."     And  the  intent  to  defraud  may  be  inferred 
from  the  fact  of  burning  and  the  taking  out  of  insurance.*' 

INTENT  TO  DESTROY. 

intent  to  destroy  is  an  essential  ingredient  of  arson.  It 
must  clearly  appear  that  the  defendant  had  this  specific 
intent  and  purpose,  and  that  the  building  was  burned  to 
carry  out  such  intent."  And  the  fact  that  the  circum- 
stances of  the  case  would  also  warrant  a  prosecution  for 
burning  the  building  to  defraud  an  insurer  does  not  affect 
the  prosecution  for  arson.** 

DEGREES. 

Arson  is  divided  in  two  degrees.'"  When  the  burning 
of  an  inhabited  building  takes  place  in  the  night  time,  in 
which  there  is  at  the  time  some  human  being,  it  is  the  first 
degree.^**  The  jury  must  find  the  degree.^*  But  when  the 
indictment  charges  only  the  lower  degree,  the  verdict  need 
not  specify  the  degree.^^ 

INDICTMENT. 

Indictment,  in  the  language  of  the  statute  is  sufficient.*' 
It  need  not  set  out  and  describe  the  particular  kind  of 
building  as  specified  in  the  code,  nor  that  it  was  capable 
of  affording  shelter  to  human  beings.^*  The  degree  need 
not  be  alleged,  as  it  is  a  question  of  fact  for  the  jury  to 
determine  from  the  evidence.-^  Where  the  charge  is  burn- 
ing with  intent  to  defraud  an  insurer,  it  should  allege  the 
insurance  company   was   a  corporation,   if   such   were  the 

15  People  V.  Hughes,  29   Cal.   258. 

16  People  V.  Vasalo,  120  Cal.  168. 

IT  People  V.  Mooney,  127  Cal.  339;  People  v.  Fong  Hong, 
120  Cal.  685. 

18  People  V.  Fong  Hong,  120  Cal.  683. 

19  Penal  Code  453;    People  v.  Coch.  53  Cal.  627. 

20  Penal  Code  454. 

21  People  V.  Coch,   53   Cal.   627. 

22  People  V.  Fisher,  51  Cal.  319. 

2s  People  V.  Russell,  81  Cal.  616;   People  v.  Glacamella,  71 

Cal.  48;   People  v.  De  Winton.  113  Cal.  408 

24  People  V.  Russell,  81  Cal.  616;  Peop'e  v.  Glacamella,  71 
Cal.   48. 

•5  People  V.  Russell,  81   Cal.   616. 


ARSON.  81 

fact.^"     But  a  variance  in  the  name  of  the  company  is  not 
fatal  to  a  judgment  of  conviction.^^ 

VENUE. 

It  is  sufficient  if  the  defendant  burned  a  building  within 
the  jurisdiction  of  the  court;  and  it  need  not  be  alleged 
that  at  the  time  of  the  burning  the  building  was  in  the 
county  where  the  burning  took  place.^* 

DESCRIPTION   OF   BUILDING. 

The  object  of  a  description  is  simply  to  identify  the  prop- 
erty,^® and  it  is  a  sufficient  identification  if  it  be  alleged 
that  it  was  the  property  of  A  and  formerly  occupied  by  B, 
if  the  proof  shows  that  B  really  occupied  it  but  fails  to 
show  ownership  in  A.^° 

DESCRIPTION   OF   OWNERSHIP. 

The  indictment  must  show  that  it  was  the  property  of 
another  unless  such  circumstances  be  alleged  as  will  show 
it  was  in  the  possession  and  occupancy  of  another.^^  In 
which  case  it  may  be  alleged  to  be  in  the  person  occupy- 
ing it  as  a  residence/''^  And  an  allegation  of  partnership 
ownership  will  be  sustained  by  proof  of  ownership  of  the 
partners  as  joint  tenants  or  cotenants.^^  If  the  indict- 
ment allege  the  name  of  the  occupant  it  is  enough.^*  And 
when  the  name  of  the  occupant  is  set  out,  it  is  not  neces- 
sary to  allege  the  name  of  the  owner  of  the  title.^'"' 

INTENT. 

The  intent  may  be  alleged  by  way  of  participles  instead 
of  by  verbs,  although  the  indictment  might  be  improved  by 

26  People  V.  Schwartz,   32   Cal.    161. 

27  People  V.  Hughes,  29     Cal.  258;   People  v.  Schwartz,  32 
Oa!.   165. 

'  28  People  V.  Wooley,  44  Cal.  494. 
20  People  V.  Handley,   100  Cal.  370. 

30  People  V.  Shainwold,  51  Cal.  4&8. 

31  People  V.  De  Winton,  113  Cal.  403. 

32  People  V.  Handley,   100   Cal.   370;    People  v.   Wooley,  44 
Cal.   495. 

33  People  V.  Greening,  102  Cal.  384. 

34  People  V.  Scott,  32   Cal.  200. 

35  People  V.  Handley,   100  Cal.   370. 

SRIMES--6 


82  CRIMINAL  LAW  AND  PROCEDURE. 

making  direct  and  positive  averments.''"  And  under  the 
code  it  is  not  necessary  to  allege  a  setting  on  fire,  but  only  a 
burning.^^     Specific  intent  to  destroy  must  be  alleged.'* 

EVIDENCE. 

It  is  immaterial  to  prove  a  motive,^**  yet  threats  against 
the  owner  of  the  building  are  admissible  for  this  purpose. 
Also  evidence  tending  to  show  that  the  defendant  started 
former  fires  by  which  another  building  on  the  same  prem- 
ises was  burned.*"  In  a  charge  of  burning  a  building  to 
defraud  an  insurance  company  it  need  not  be  proved  that 
the  policy  of  insurance  was  valid. *^  The  intent  to  defraud 
may  be  inferred  from  the  fact  of  burning  and  the  exist- 
ence of  insurance.*^  And  it  may  be  shown  that  the  value 
of  goods  exceeded  the  value  of  insurance,  but  that  does 
not  amount  to  a  defense.'*^  Payment  of  rent  to  the  land- 
lord may  be  shown  to  prove  tenancy  by  occupant.** 

PENALTY. 

In  the  first  degree  imprisonment  in  state  prison  not  less 
than  two  years.  In  the  second  degree,  imprisonment  in 
state  prison  from  one  to  twenty-five  years. 

FORM ARSON. 

A  certain  building,  to  wit,  a  dwelling  house  of  one  C  D 
[or  other  building,  describing  it]  there  situate,  did,  unlaw- 
fully, wilfully,  maliciously  and  feloniously  burn,  with 
intent  to  destroy  the  same. 

FORM — BURNING  INHABITED  BUILDING. 

In  the  night  time  of  said  day,  unlawfully,  wilfully, 
maliciously  and  feloniously  did .  burn  a  certain  inhabited 
building,  to  wit,  the  dwelling  house  of  C  D,  there  situate, 

36  People  V.  Vasalo,  120  Cal.  168. 
3T  People  V.  Myers,    20   Cal.    76. 

38  People  V.  Mooney,   127  Cal.   339;    People  v.    l<ong  Hong, 
120  Cal.  685. 

39  People  V.  Fong  Hong,  120  Cal.  685. 

*o  People  V.  Lattimore,   86  Cal.   403;    People   v.   Shainwold, 
51  Cal.  468. 

41  People  V.   Hughes.  29  Cal.   258. 

42  People  V.  Vasalo,  120  Cal.   168. 

43  People  V.  Goldsworthy,  130  Cal.  600. 
'*  People  V.  Simpson,  50  Cal.  304. 


ARSON.  83 

in  which  said  dwelling  house  there  was  then  and  there  a 
human  being. 

FORM — TO    DEFRAUD    INSURER. 

Unlawfully,  wilfully,  maliciously  and  feloniously  did 
burn,  injure,  and  destroy  certain  property,  to  wit,  [describ- 
ing it]  there  situate,  of  the  property  of ,  which  said 

property  was  then  and  there  insured  against  loss  and  dam- 
age by  fire    [or  other  casualty,  stating  it]   by   the  

Insurance   Company,   a   corporation,   with   intent   then   and 

there  and  thereby  to  defraud  and  prejudice  said  

Insurance  Company. 


CHAPTER  VIII. 


ASSAULT. 


DEFINED. 


The  subject  of  assault  is  intimately  connected  with  that 
of  criminal  attempt.  Assaults  are  of  many  degrees,  vary- 
ing from  the  simple  assault  to  the  more  aggravated  forms, 
such  as  are  included  in  forcible  abduction,  robbery,  rape, 
and  murder ;  these  will  be  discussed  under  their  appro- 
priate heads.  Our  code  defines  assault  as  an  unlawful 
attempt,  coupled  with  a  present  ability,  to  commit  a  violent 
injury  on  the  person  of  another.^  It  will  thus  be  seen  that 
three  elements  are  necessary  to  constitute  this  offense : 
(i)  An  intent  to  commit  a  violent  injury;  (2)  the  present 
ability;  and  (3)  the  actual  attempt.^ 

INTENT. 

The  intent  here  necessary  is  only  the  intent  to  do  the 
unlawful  act,  which  is  the  ingredient  of  every  crime.  The 
drawing  of  the  weapon,  accompanied  by  a  threat  to  use  it, 
is  sufficient  to  show  intent.^  It  may  be  shown  by  threats 
and  declarations  made  immediately  after  the  attempt,*  or 
by  the  circumstances  surrounding  the  act,  as  throwing  a 
person  from  the  third  story  window,^  or  throwing  vitriol 
upon  another  person,^  or  a  forcible  abduction.®*  An  assault 
cannot  be  committed  where  the  party  acts  in  self-defense, 

1  Penal  Code  240;   People  v.  Yslas,  27  Cal.  631;   People  v. 
Dodel,  77  Cal.  293. 

2  People  V.  Lee    Kong,    95    Cal.    666;    People    v.    Yslas,    27 
Cal.  631;  People  v.  Dodel,  77  Cal.  293. 

3  People  V.  McMakin,  8  Cal.  547. 
*  People  V.  Yslas.  27  Cal.  630. 

5  People  V.  Emmons,  61  Cal.,  487. 

6  People  V.  Stanton,  106  Cal.  139. 
8a  People  V.  Ah   Own,   39   Cal.   604. 


ASSAULT.  85 

for  any  act  done  in  self-defense  is  not  unlawful,  and  can 
never  amount  to  an  assault.'' 

PRESENT   ABILITY. 

The  common  law  definition  of  an  assault  is  substantially 
the  same  as  that  found  in  the  code.  It  is  not  indispensable 
that  the  assailant  should  be  at  any  time  within  striking  dis- 
tance, if  he  is  advancing  with  intent  to  strike  his  adver- 
sary, and  come  sufficiently  near  to  induce  a  man  of  ordinary 
firmness  to  believe,  in  view  of  all  the  circumstances,  that 
he  will  instantly  receive  a  blow,  unless  he  strike  in  self- 
defense,  or  retreat.®  To  constitute  an  assault  with  a 
weapon  it  is  necessary  that  the  weapon  should  be  presented 
at  the  party  assaulted  within  the  distance  at  which  it  may  do 
execution.  But  present  ability  is  shown  where  the  assail- 
ant has  a  loaded  pistol  and  the  person  intended  to  be  fired 
at  is  within  reach  of  its  effect,  notwithstanding  he  was  mis- 
taken as  to  the  exact  spot  where  his  intended  victim  was 
located  at  the  time  of  firing.^  The  mere  drawing  a  knife, 
without  being  near  enough  to  strike  the  person  with  it, 
and  without  advancing  towards  him  does  not  show  a  pres- 
ent ability.^" 

ATTEMPT. 

The  subject  of  attempt  has  been  quite  fully  treated 
heretofore,  and  it  is  unnecessary  to  describe  here  what 
amounts,  in  law,  to  an  attempt.  An  attempt  is  one  of  the 
essential  elements  of  an  assault."  But  there  must  be 
something  more  than  menaces, ^^  or  putting  in  fear,  to  con- 
stitute it.^^  There  must  be  a  violence  begun  to  be  exe- 
cuted,^* or  an  attempt  to  strike  or  to  use  the  weapon.^' 
However,  the  drawing  of  a  pistol  on  another,  accompanied 
with  a  threat  to  use  it,  unless  the  other  leave  the  spot,  is 

'  People  V.  Lynch,  101  Cal.  220;  People  v.  Dollor,  89  Cal. 
'     513. 

8  People  V.  Yslas,  27  Cal.  630. 

9  People  V.  Lee  Kong,   95   Cal.  669. 

10  People  V.  Dodel,   77   Cal.   293, 

11  People  V.  Devlne,  59  Cal.  630. 

12  People  V.  Yslas,   27   Cal.   634. 

13  People  V.  Lee  Kong,  95   Cal.   669. 

14  People  V.  Yslas,    27   Cal.    643. 
If'  People  V.  Dodel,   77   Cal.   293. 


86  CRIMINAL  LAW  AND  PROCEDURE. 

an  assault,  although  the  pistol  was  not  pointed  at  the  per- 
son threatened.  Here  the  threat  was  conditioned,  it  is 
true,  but  the  condition  was  present,  not  future,  and  the 
compliance  demanded  was  immediate.  Where  a  party  puts 
in  a  condition  which  must  be  performed  at  once,  and  which 
he  has  no  right  to  impose,  and  his  intent  is  immediately  to 
enforce  performance  by  violence,  and  places  himself  in  a 
position  to  do  so,  and  proceeds  so  far  as  it  is  necesssary 
for  him  to  go  in  order  to  carry  out  his  intention,  then  it 
is  as  much  an  assault  as  if  he  had  actually  struck  or  shot 
at  the  other  party  and  missed  him.^^  A  battery  or  wound- 
ing is  no  part  of  the  offense.^'  But  the  acts  which  accom- 
pany the  intent  to  commit  the  violence  must  be  such  as 
would,  if  not  interrupted  or  avoided,  result  in  violence  to 
the  person  threatened.^®  The  fact  that  the  accused  was 
interrupted  and  his  intent  rendered  abortive  because  of  an 
obstruction  to  him  unknown  at  the  time,  does  not  render 
his  act  any  the  less  an  attempt.  Thus  where  the  defend- 
ant believing  that  a  policeman  was  on  the  roof,  fired  a 
pistol  at  the  spot  with  intent  to  kill,  it  is  an  attempt, 
although  the  officer  was  not  at  the  spot  when  the  shot  was 
fired.^*^  The  assault  is  complete  if  the  attempt  is  made, 
although  it  is  interrupted  or  abandoned  before  an  injury 
has  actually  occurred. ^*'  An  assault  made  without  the  use 
of  a  deadly  weapon  with  intent  to  do  mere  bodily  harm  is 
a  misdemeanor.-^  But  where  it  is  made  to  commit  a  fel- 
ony, it  is  a  felony  without  regard  to  the  means  resorted 
to  in  making  such  assault.'^^ 

BATTERY. 

The  offense  of  battery  is  the  wilful  and  unlawful  use  of 
force  or  violence  upon  the  person  of  another.^^     It  is  also, 

16  People  V.  McMakin,  8  Cal.  547. 

17  People  V.  Keefer,  18  Cal.  637. 

18  People  V.  Yslas,  27  Cal.  631. 

18  People  V.  Lee  Kong,  95  Cal.  666. 

20  People  V.  Johnson,  131  Cal.  512. 

21  People  V.  Murat,  45  Cal.  281;  People  v.  Helbing,  61  Cal. 
620;   People  v.  Martin,  47  Cal.  112. 

22  People  V.  Gordon,  70  Cal.  467;   People  v.  Murat,  45  Cal. 
281. 

23  Penal  Code  242. 


ASSAULT.  87 

like  assault,  a  misdemeanor,  but  is  a  greater  offense  than 
assault,  and  being  the  greater  it  includes  the  less ;  but  the 
less  does  not  include  the  greater ;  hence  battery  includes 
assault  but  assault  does  not  include  battery.-* 

WITH    DEADLY    WEAPON. 

A  deadly  weapon  is  one  likely  to  produce  death  or  great 
bodily  harm.^°  It  includes  a  loaded  stocking  when  pre- 
pared in  such  a  manner  as  is  likely  to  produce  death. ^* 
A  knife  may  be  such  a  weapon,^'  although  sometimes 
whether  a  weapon  be  deadly,  or  otherwise,  depends  upon 
the  manner  in  which  it  is  used.^^  And  an  explosion  by 
gunpowder  may  thus  become  a  deadly  weapon-^  The 
court  will  not  instruct  the  jury  that  the  weapon  used  in 
making  an  assault,  as  a  matter  of  law,  is  a  deadly  weapon, 
but  leaves  the  question  to  the  jury,  after  defining  the 
term.^'^  The  weapon  is  the  gist  of  the  offense  and  distin- 
guishes assault  with  a  deadly  weapon  from  a  simple 
assault. ^^  The  indictment  must  charge  the  facts  which 
show  the  weapon  used  was  deadly.^^  But  it  is  sufficiently 
described  if  the  facts  are  alleged  from  which  the  court  may 
determine  the  character  of  the  weapon.^''  But  the  intent 
to  do  harm  need  not  be  pleaded  nor  found. ^*  And  the 
charging  that  the  defendant  was  armed  with  a  deadly 
weapon  and  made  an  assault,  is  not  an  allegation  that  he 
made  it  with  a  deadly  weapon,  and  will  not  support  a  con- 

24  People  V.  Heibing,  61  Cal.  620. 

25  People  V.  Puqua,  58  Cal.  245;  People  v.  Franklin,  70  Cal. 
643;   People  v.  Leyba.  74  Cal.  408. 

26  People  V.  Valllere,   123   Cal.   576. 

27  People  V.  Franklin,   70  Cal.   641. 

28  People  V.  Fuqua,  58  Cal.  245;  People  v.  Rodngo,  69  Cal. 
601. 

20  People  V.  Pape,  66  Cal.  366. 

30  People  V.  Rodrigo,    69   Cal.   601. 

31  People  V.  Vanard,  6  Cal.  562. 

32  People  V.  Jacobs,  29  Cal.  579;  People  v.  Congleton,  44 
Cal.  94;  People  v.  Villarino,  66  Cal.  229;  People  v.  Pape, 
66  Cal.  367. 

33  People  V.  Pape,  66  Cal.  366. 

34  People  V.  Turner,  65  Cal.  540;  People  v.  Mize,  80  Cal  44; 
People  V.  Forney,  81  Cal.  119;  People  v.  Savercool,  81 
Cal.  651. 


88  CRIMINAL  LAW  AND  PROCEDURE. 

viction  of  felonious  assault.^'"*  The  allegation  that  the 
defendant  intended  to  commit  an  assault  and  had  the  pres- 
ent ability  to  do  so,  is  unnecessary.^^  The  assault  may  be 
committed,  although  no  blow  is  struck.^^ 

VERDICT. 

The  conviction  on  a  charge  of  assault  with  a  deadly 
weapon  cannot  be  construed  as  a  conviction  of  a  simple 
assault."*^  But  a  charge  of  assault  with  a  deadly  .weapon 
will  support  a  verdict  of  assault  with  intent  to  do  bodily 
harm.^^  However,  on  a  charge  of  assault  with  a  deadly 
weapon  with  intent  to  inflict  great  bodily  injury,  a  verdict 
of  guiky  of  an  assault  with  a  deadly  weapon,  is  a  convic- 
tion of  a  simple  assault.*"  The  defendant  may  be  con- 
victed of  any  offense  the  commission  of  which  is  necessarily 
included  in  that  with  which  he  is  charged.*^  A  verdict 
that  an  assault  was  made  with  intent  "to  do  bodily  harm 
upon  the  person"  of  another  is  equivalent  to  a  verdict  that 
the  assault  was  made  with  intent  "to  inflict  upon  the  per- 
son of  another  a  bodily  injury."*^  And  a  verdict  of  guilty 
of  an  assault  with  a  deadly  weapon  with  intent  to  inflict 
bodily  injury  is  a  conviction  of  a  felony,  not  a  simple 
assault.*^  The  offense  of  assault  with  a  deadly  weapon  is 
necessarily  included  in  a  charge  of  an  assault  to  commit 
murder;  and  under  an  indictment  charging  the  greater 
offense  to  have  been  committed  with  a  deadly  weapon,  the 
defendant  can  be  found  guilty  of  the  lesser.**  But  under 
an  indictment  for  an  assault  to  commit  murder  a 
conviction  of  an  assault  made  with  a  deadly  weapon  to  do 

35  People  V.  Vierra,  52  Cal.  451. 

36  People  V.  Forney,  81  Cal.   118. 
3-  People  V.  Bird,   60   Cal.   7. 

38  People  V.  Arnett,  126  Cal.  680. 

36  People  V.  Congleton,  44  Cal.  92;  People  v.  Murat,  45  Cal, 

284;   People  v.  Villarino,  66  Cal.  229;   People  v.  Pape,  66 

Cal.  367.  , 

40  People  V.  Wilson,   9  Cal.  260. 
■«i  People  V.  Holland.  59  Cal.  364;   People  v.  Pape,  66  Cal. 

367;  People  v.  Gordon,  99  Cal.  227. 
42  People  V.  Congleton,  44  Cal.   92. 
-»3  People  V.  English,  30  Cal.   215. 
44  People  V.  English,   30   Cal.   211;    Ex   parte   Donahue,    66 

Cal.   474;    People   v.   Bentley,  75   Cal.   403. 


ASSAULT.  89 

bodily  harm  cannot  be  supported,  unless  it  sufficiently 
appears  upon  the  face  of  the  indictment  that  the  assault 
was  made  with  a  deadly  weapon.*'*  The  Superior  Court 
has  jurisdiction  of  assaults  with  deadly  weapons,  and 
although  the  defendant  may  have  been  convicted  of  a  sim- 
ple assault  only,  that  court  has  jurisdiction  to  pronounce 
judgment  for"  the  offense  of  which  the  defendant  was  con- 
victed.^'"' 

PENALTY. 

Assault,  fine  not  exceeding  five  hundred  dollars,  or  by 
imprisonment  in  county  jail  not  exceeding  three  months. 
Assault  with  deadly  weapon,  imprisonment  m  state  prison 
or  county  jail  not  exceeding  two  years,  or  fine  not  exceed- 
ing five  thousand  dollars,  or  both.  Assault  with  intent  to 
commit  murder,  rape,  the  infamous  crime  against  nature, 
mayhem,  robbery,  or  grand  larceny,  imprisonment  in  state 
prison  from  one  to  fourteen  years.  Assault  with  intent  to 
commit  other  felonies  than  those  named  in  last  sentence, 
imprisonment  in  state  prison  not  exceeding  five  years,  or  in 
county  jail  not  exceeding  one  year,  or  fine  not  exceeding 
five  hvmdred  dollars,  or  both.  Punishment  for  an  assault 
with  a  deadly  weapon  where  information  is  for  an  assault 
with  intent  to  commit  murder  may  be  by  imprisonment  in 
the  state  prison.*'^ 

FORM — ASSAULT    WITH    DEADLY    WEAPON. 

Wilfully,  unlawfully,  and  feloniously  did  assault  with 
a  certain  deadly  weapon,  to  wit,  a  pistol  [or  other  deadly 
weapon,  naming  it]  one  C  D. 

ANOTHER     FORM — ASSAULT     WITH     DEADLY     WEAPON. 

Wilfully,  unlawfully,  and  feloniously  did  assault  one  C 
D,  by  means  and  force  likely  to  produce  great  bodily 
injury."*^ 

FORM — ASSAULT. 

Wilfullv  and  unlawfully  did  make  an  assault  upon  one 
C  D. 

*5  People  V.  Murat,  45  CaL  281. 
■•e  Ex  parte  Donahue.  65  Cal.  474. 
47  Ex  parte  Mitchell,  70  Cal.  1. 
*8  People  V.  War,  20  Cal.  117. 


90  CRIMINAL  LAW  AND  PROCEDURE. 

ANOTHER    FORM- — ASSAULT. 

Wilfully,  unlawfully,  and  maliciously  did  attempt  to  com- 
mit a  violent  injury  on  and  against  the  person  of  one  C  D, 
the  said  A  B  having  then  and  there  the  present  ability  so 
to  do. 

ASSAULT    TO   MURDER. 

An  assault  to  murder  contains  all  the  elements  of  a 
simple  assault  and  a  specific  intent  to  kill.  While  to  con- 
stitute murder,  the  guilty  person  need  not  intend  to  take 
life ;  but  to  constitute  an  attempt  to  murder,  he  must  so 
intend.  He  must  specifically  contemplate  taking  life ;  and 
though  his  act  is  such  as,  were  it  successful,  would  be  mur- 
der, if  in  truth  he  does  not  mean  to  kill,  he  does  not  become 
guilty  of  an  attempt  to  commit  murder.^  Implied  malice 
is  not  the  equivalent  of  the  actual  intent  to  kill  essential 
to  constitute  this  crime,-  but  where  every  element  is  shown 
except  intent,  the  court  may  refuse  to  instruct  the  jury  that 
the  defendant  might  be  convicted  of  a  simple  assault,  or  a 
mere  attempt  to  commit  the  offense  charged.^  Where  the 
evidence  discloses  that  the  defendant  was  either  guilty  of  a 
more  serious  offense  than  simple  assault,  or  he  was  not 
guilty,  the  court  is  justified  in  failing  or  refusing  to  instruct 
as  to  a  simple  assault.*  It  is  for  the  jury  to  say  whether 
the  weapon  used  would  have  produced  death,**  and  the 
intent  becomes  immaterial  where  the  defendant  is  convicted 
of  an  assault  with  a  deadly  weapon.®  The  intent  need  not 
be  to  murder  a  particular  person,  thus,  where  A  intend- 
ing to  murder  B,  shoots  C,  supposing  C  to  be  B,  and 
wounds  C,  is  guilty  of  an  assault  with  intent  to  murder 
C.''  The  defendant  cannot  justify  an  assault  upon  his 
wife  on  the  ground  of  her  lewd  conduct  when  he  was 
aware  of  it  for  eighteen  months  and  was  not  acting  under 

1  People  V.  Mize,  80  Cal.  41. 

2  People  V,  Burgle,   123   Cal.   303;    People  v,   Wallace,   101 
Cal.  285. 

3  People  V.  Stanton,   106   Cal.   139. 

4  People  V.  Scott,  93  Cal.   516;    People  v.  McNutt,  93  Cal. 
658. 

5  People  V.  McFadden,  65  Cal.  445. 
«  People  V.  Wallace,  101  Cal.  281. 

7  People  V.  Torres,  38  Cal.  141. 


ASSAULT.  91 

the  influence  of  passions  aroused  by  recent  information.' 
Nor  is  a  trespasser  justified  in  shooting  the  servant  of  the 
owner  who  attempts  to  put  him  off  the  premises,  when  he 
can  with  safety  avoid  it."  Xor  is  a  person  resisting  arrest 
by  an  officer  who  has  reasonable  cause  to  believe  him  guilty 
of  a  felony,  justified  in  shooting  the  officer,-  although  he 
has  no  warrant.^" 

EVIDENCE. 

The  intent  to  murder  must  be  proved  as  an  indispensable 
fact,^^  and  no  presumption  of  law  can  arise  which  will 
decide  it.^^  It  may  be  inferred,  however,  from  the  shoot- 
ing of  an  officer  attempting  to  arrest  the  defendant  for 
another  crime. ^^  In  determining  this  intent  two  elements 
are  to  be  considered ;  the  charcter  of  the  weapon  and  the 
nature  of  the  wound. ^^  The  intent  is  always  a  question  of 
fact,^^  and  may  be  shown  by  the  character  of  the  instru- 
ment used,  the  manner  of  its  use  and  the  purpose  to  be 
accomplished  thereby. ^^  But  where  the  assault  was  com- 
mitted with  a  knife,  evidence  that  the  defendant  had  a 
pistol  is  inadmissible,^^  and  likewise,  evidence  that  he  had  a 
knife  and  a  pistol  on  his  person  nearly  a  month  after  the 
offense,^®  and  evidence  to  prove  the  stabbing  of  another  by 
directions  of  defendant,  given  at  the  same  time,  is  admis- 
sible to  show  the  intent  with  which  the  assault  was  made.^® 
And  to  establish  the  motive  of  the  assault,  it  is  admissible 
to  show  that  the  defendant  was  escaping  from  jail,  although 
it  may  tend  to  show  another  offense.^"     And  it  is  proper 

8  People  V.  Arnold,   116  Cal.  682. 

9  People  V.  Douglass,   87   Cal.   281. 

10  People  V.  Wilson,    117   Cal.    688. 

11  People  V.  Mize,  80  Cal..  40;  People  v.  Wallace,  101  Cal. 
285;  People  v.  Landman,  103  Cal.  581;  People  v.  Wilson, 
117  Cal.  688. 

12  People  V.  Johnson,   106   Cal.   289. 

13  People  V.  Wilson,  117  Cal.  688. 

14  People  V.  Ye  Park,  62  Cal.  204. 

16  People  V.  Wilson,  117  Cal.  688;  People  v.  Watson,  12S 
Cal.  342. 

16  People  V.  Valliere,   123  Cal.   576. 

17  People  V.  Wong  Ah  Leong,  99  Cal.  440. 

18  People  V.  Yee  Fook  Din,  106  Cal.  163. 

19  People  V.  Chin  Bing  Quong,  79  Cal.  553. 

20  People  V.  Valliere,   123   Cal.   576. 


92  CRIMINAL  LAW  AND  PROCEDURE. 

to  show  circumstances  of  a  previous  crime,  when  the  crime 
of  which  the  defendant  is  charged  is  an  assault  with  intent 
to  murder  an  officer  who  is  endeavoring  to  arrest  him  for 
the  previous  crime.*^ 

INDICTMENT. 

The  indictment  must  allege  malice  aforethought.'^^  The 
charge  of  assault  with  intent  to  commit  murder  will  sus- 
tain a  conviction  of  an  assault  with  a  deadly  weapon  with 
intent  to  do  great  bodily  harm,^^  if  it  appear  from  the 
indictment  that  the  assault  was  made  with  a  deadly 
weapon  ;-*  but  the  consent  of  the  defendant  cannot  con- 
fer jurisdiction  on  the  court  to  try  him  for  any  other 
offense  than  that  charged  in  the  indictment.^'  It  will  also 
sustain  a  conviction  of  any  other  lesser  offense  included  in 
the  charge.^®  And  it  does  not  cure  the  error  in  the  indict- 
ment that  the  defendant  requested  an  instruction  that  he 
might  be  convicted  of  assault  with  a  deadly  weapon,  where 
the  indictment  does  not  show  that  the  assault  was  made 
by  means  of  a  deadly  weapon. ^^ 

VERDICT. 

A  verdict  finding  the  defendant  guilty  of  an  assault  to 
murder  is  sufficient,^^  or  finding  the  defendant  guilty  is 
sufficient  in  form  to  convict  of  the  offense  charged. ^^  But 
under  an  indictment  for  assault  with  intent  to  commit  mur- 
der,  a   verdict   of  guilty   of  an   assault   with   intent  to  do 

21  People  V.  Wilson,   117  Cal.  688. 

22  People  V.  Urias,  12  Cal.  326;  People  v.  Schmidt,  63  Cal. 
281;   People  v.  Arnold,  116  Cal.  686. 

23  People  V.  Davidson,  5  Cal.  134;  People  v.  English,  30 
Cal.  218;  People  v.  Congleton,  44  Cal.  92;  People  v. 
Lightner,  49  Cal.  226. 

2*  People  V.  Vanard,  6  Cal.  563;  People  v.  Murat,  45  Cal. 
283;  People  v.  Lightner,  49  Cal.  229;  People  v.  Arnett, 
126  Cal.  680. 

25  People  V.  Granice,  50  Cal.  448. 

26  People  V.  Fine,  53  Cal.  263;  People  v.  Bentley.  75  Cal. 
407;  People  v.  Gordon,  99  Cal.  229;  People  v.  Pape,  66 
Cal.  366;  People  v.  Watson.  125  Cal.  342;  People  v. 
Arnold,  116  Cal.  687;  People  v.  Scott,  93  Cal.  616;  People 
V.  Barney,  114  Cal.  558;    People  v.  Guidice,   73  Cal.  226. 

27  People  V.  Murat,   45  Cal.   281. 

28  People  V.  McFadden,  65  Cal.  445. 

29  People  V.  West,  73  Cal.  345. 


ASSAULT.  93 

bodily  injury  is  a  conviction  of  a  simple  assault,  and  there- 
fore only  of  a  misdemeanor.''"  But  under  such  an  indict- 
ment a  verdict  of  guilty  as  charged  is  a  felony.^^  A  ver- 
dict of  assault  with  a  deadly  weapon  will  support  a  judg- 
ment of  imprisonment  in  the  state  prison,  for  upon  impos- 
ing such  a  judgment  the  crime  thereby  becomes  a  felony.'* 

FORM ASSAULT    WITH    INTENT    TO    COMMIT    MURDER. 

Did,  wilfully,  unlawfully,  feloniously,  and  with  malice 
aforethought,  with  a  deadly  weapon,  to  wit,  a  pistol  [or 
other  deadly  weapon,  naming  it]  then  and  there  assault 
one  C  D  with  intent  then  and  there  to  kill  and  murder  said 

30  People  V.  Aubrey,  53  Cal.  427;  Ex  parte  Ah;  Cha,  40  Cal. 
426;  People  v.  Congleton,  44  Cal.  94;  People  v.  Vanard, 
6  Cal.  562;  People  v.  English,  30  Cal.  218;  People  v. 
Wilson,  9  Cal.  260;  People  v.  Martin,  47  Cal.  112;  People 

V.  Holland,  59  Cal.  364;   People  v.  Turner,  65  Cal.  541; 
People  V.  Murat,  45  Cal.  283;   Ex  parte  Max,  44  Cal.  581. 

31  People  V.  Swenson,  49  Cal.  388;  People  v.  Mesa,  93  Cal. 
584;    People  v.  Chuey  Ying  Git,  100  Cal.  439. 

3^  Ex  parte  Mitchell,  70  Cal.  1;  People  v.  Turner,  65 
Cal.  541. 

33  People  V.  Ah  Toon,  68  Cal.  362;  People  v.  McFadden,  65 
Cal.  445;  People  v.  Swenson,  49  CaL  388;  People  v.  Eng- 
lish, 30  Cal.  215. 


CHAPTER  IX. 


BIGAIVLY. 

[Penal   Code,   sees.   281-284.] 


DEFINITION. 

Bigamy  is  the  offense  of  marrying  another  person  while 
having  a  husband  or  wife  living.^  The  essence  of  the 
offense  is  marrying  while  married  to  another,  and  not  the 
intent  with  which  it  is  done.  An  honest  belief  on  the  part 
of  the  accused  that  he  was  unmarried  at  the  time  is  no 
defense.'*  It  is  a  familiar  rule  that  to  constitute  a  crime 
there  must  be  a  union  of  act  and  intent,  but  where  a  spe- 
cific intent  is  not  an  element  of  the  crime  the  only  intent 
necessary  is  a  purpose  or  willingness  to  commit  the  act.* 
It  is  not  bigamy,  however,  where  the  former  husband  or 
wife  has  been  absent  for  five  successive  years,  without  being 
known  to  such  person  within  that  time  to  be  living;  nor 
where  the  former  marriage  has  been  pronounced  void, 
annulled,  or  dissolved  by  judgment  of  a  competent  court.* 

PRESUMPTION    OF    CONTINUED    LIFE. 

In  a  prosecution  for  bigamy  the  law  presumes  the  inno- 
cence of  the  defendant  until  the  contrary  is  shown.  And 
while  it  also  presumes  the  existence  of  a  person  once  estab- 
lished by  proof  to  continue  until  the  contrary  is  shown,  it 
is  incumbent  on  the  prosecution  to  prove  that  the  husband 
or  wife  of  the  former  marriage  was  alive  at  the  date  of  the 
second  marrriage ;  and  where,  in  case  of  two  presumptions, 
one  of  innocence  and  the  other  of  continuance  of  life,  the 

1  Penal  Code  281. 

2  People  V.  Hartman,    130    Cal.    487. 

3  People  V.  O'Brien,    96    Cal.    176. 

4  Penal  Code    282. 


BIGAMY.  95 

presumption  of  innocence  prevails.'*  The  mere  fact  that 
the  former  spouse  was  alive  three  years  before  the  second 
marriage  is  not  sufficient  to  support  a  conviction." 

PROOF    OF    FORMER    MARRIAGE. 

On  a  prosecution  for  bigamy  general  repute  of  marriage 
is  admissible  in  evidence  as  a  circumstance  tending  to 
show  the  fact  of  marriage.'^  And  the  fact  that  the  rec- 
ord of  the  marriage  certificate  is  also  evidence  of  the 
marriage  does  not  exclude  evidence  that  the  parties  lived 
together  avowedly  as  man  and  wife.®  And  the  marriage 
to  support  the  charge  need  not  be  a  regular  solemnized  and 
authenticated  marriage,  but  it  is  sufficient  if  there  is  a  con- 
sent to  the  marriage,  followed  by  a  mutual  assumption  of 
marital  rights,  duties,  and  obligations.®  But  the  mere  intro- 
duction of  another  by  the  defendant  as  his  wife  or  occupy- 
ing the  same  room  at  the  hotel  is  not  evidence  tending  to 
show  that  such  a  relation  existed. ^^  So  consent  alone  will 
not  constitute  marrriage ;  it  must  be  followed  by  a  solemn- 
ization or  by  a  mutual  assumption  of  marital  rights,  duties, 
or  obligations.^^  But  as  the  law  exists  now,  consent  and  a 
mutual  assumption  of  marital  rights,  duties,  and  obliga- 
tions is  not  sufficient  to  constitute  a  marriage.  There  must 
be  a  solemnization.^^ 

INDICTMENT. 

It  is  not  necessary  that  the  information  for  bigamy 
should  state  at  what  place  the  defendant  was  first  mar- 
ried.'' 

■•  People  V.  Feilen,  58  Cal.  223;   Hunter  v.  Hunter,  111  Cal. 

261;   White  v.  White,  82  Cal.  448. 
'■■  People  V.  Feilen,  58  Cal.  218. 
■  People  V.  Hartman,  130   Cal.   487;    People  v.   Beevers,  99 

Cal.  289;  White  v.  White,  82  Cal.  427. 
«  People  V.  Stokes,  71  Cal.  265. 
9  People  V.  Beevers,   99  Cal.  286. 
'"  People  V.  Lehmann,  104  Cal.  634.' 

11  People  V.  Beevers,  99  Cal.  286;  People  v.  Lehmann,  104 
Cal.  634;  Sharon  v.  Sharon.  79  Cal.  673;  Hinkley  v. 
Ayres,  105  Cal.  360. 

12  Penal  Code  68. 

13  People  v.  Giesea,  61  Cal.  53. 


96  CRIMINAL  LAW  AND  PROCEDURE. 

JURISDICTION. 

The  crime  may  be  prosecuted  in  the  county  where  the 
offense  is  committed  or  in  any  county  in  which  the  defend- 
ant may   be  apprehended.^* 

PENALTY. 

Fine  not  exceeding  two  thousand  dollars  and  imprison- 
ment in  state  prison  not  exceeding  three  years.  Person 
knowingly  and  wilfully  marrying  the  husband  or  wife  of 
another,  fine  not  less  than  two  thousand  dollars,  or  impris- 
onment in  state  prison  not  exceeding  three  years. 

FORM BIGAMY. 

While  having  a  husband  [or  wife]  then  living  unlaw- 
fully, wilfully,  and  feloniously  did  marry  and  take  to  wife 
one  C  D. 

14  Penal  Code  785. 

BILL   POSTING,  see  TRESSPASSING. 


CHAPTER  X. 


BRIBKRY. 


DEFINITION. 

Bribery  is  the  asking,  giving,  accepting,  or  promising  or 
undertaking  to  give  anything  of  value  or  advantage,  pres- 
ent or  prospective,  with  the  corrupt  intent  to  influence 
unlawfully  the  person  to  whom  it  is  given  in  his  action, 
vote,  or  opinion  in  any  public  or  official  capacity.^  The 
offense  of  offering  a  bribe  is  complete  by  the  offer  without 
any  tender  or  production  of  the  money,^  and  the  offense 
of  offering  to  receive  a  bribe  is  complete  without  an  offer 
to  give.^  An  offer  to  give  a  bribe  on  behalf  of  another  is 
as  much  a  bribe  as  though  made  in  his  own  behalf,*  and 
a  police  officer  who  accepts  money  under  a  promise  not  to 
arrest  or  prosecute  offenders  against  certain  laws  is  guilty, 
even  though  there  be  no  violation  of  such  laws  shown,  or 
a  failure  of  the  officer  to  make  arrests.-''  To  constitute  the 
offense  of  asking  for  and  agreeing  to  receive  a  bribe,  it 
need  not  be  met  with  a  consent  to  give.  And  the  offense 
of  asking  for  a  bribe  is  committed  by  a  juror  who  in  a  civil 
case  offers  to  procure  a  verdict  for  the  defendant  for  a 
specified  sum.®  But  a  bribe  to  a  witness  to  influence  his 
testimony  does  not  include  the  case  of  a  person  who  by 
aid  of  gifts  tries  to  induce  a  witness  to  tell  the  truth,  whom 
he  imagines  is  prejudiced  and  intends  to  testify  falsely 
against  him.''     The  law  punishing  an  offer  to  bribe  trustees 

1  Penal  Code,  7,  sub.   6. 

2  People  V.  Ah  Fook,  62  Cal.  493. 

s  People  V.  Hurley,  126  Cal.  3D1. 

4  People  V.  Northey,   77   Cal.    619. 

5  People  V.  Markham.  64  Cal.  157. 

6  People  V.  Squires,   99  Cal.   327. 

7  People  V.  Fong    Ching,    78    Cal.    169. 

CRIMES--7 


»»  CRIMINAL  LAW  A5I>  PROOEBUKE, 

of  a  corporation,  includes  only  public  or  quasi  public  cor- 
porations.* Thus,  primary  elections  for  deleg^ates  to  a 
convention,  being  purely  political  parties  and  associations, 
■are  not  public  bodies,  and  are  not  included  within  the  stat- 
ute punishing  bribery.®  But  an  offer  to  bribe  a  member 
'of  a  convention  for  the  nomination  of  public  officers  is 
within  the  statute.  And  a  delegate  elected  to  such  con- 
vention is  a  member  thereof  from  the  date  of  the  primary 
election  at  which  he  was  chosen ;  and  as  such  member  may 
be  guilty  of  offering  to  receive  a  bribe  from  a  candidate  for 
nomination  prior  to  the  meeting  of  the  convention.^" 

INDICTMENT. 

It  may  be  generally  stated  that  an  information  in  the 
language  of  the  statute  is  suf!icient.^^  But  it  is  not  suffi- 
cient to  allege  generally  in  the  indictment  that  the  defend- 
ant bribed  a  certain  person  to  do  a  certain  thing;  this  is 
only  a  legal  conclusion,  the  specific  facts  constituting  the 
offense  must  be  alleged  ;^^  and  it  will  be  fatally  defective  if 
it  fails  to  allege  that  the  bribe  was  promised  or  received 
as  an  inducement  to  official  action. ^^  Thus,  a  charge  against 
a  judge  of  taking  a  bribe  not  to  forfeit  a  recognizance 
under  a  statute  defining  bribery  to  be  to  act  "more  favor- 
ably to  one  side  than  the  other  in  a  suit,  matter  or  cause 
pending  or  brought  before  him,"  must  allege  that  there  was 
a  proceeding  commenced,  or  to  be  commenced  upon  the 
recognizance.^* 

EVIDENCE. 

To  show  the  materiality  of  the  proposed  false  testimony 
sought  to  be  had  from  the  witness,  it  is  comi>etent  to  show 
the  general  nature  of  the  crime  in  respect  to  such  testi- 
mony, but  it  is  error  to  allow  evidence  of  its  full  details." 

8  People  V.  Tumbull,  93  Cal.  630. 

9  People  V.  Cavanaugh,  112  Cal.  674. 

10  People  V.  Hurley,  126  Cal.  351. 

11  People  V.  Edson,  68  Cal.  549. 

12  People  V.  Ward,  110  Cal.  373. 

13  People  V.  Kalloch,    60   Cal.   116. 
1*  People  ex  rel  Perley.  2  Cal.  564. 

16  People  V.  Fong  Ching.  78  Cal.  169. 


BRIBERY.  99 

And  at  a  trjal  for  offering  a  bribe  to  a  juror,  who  served  in 
a  civil  action,  the  complaint,  answer,  and  minutes  of  the 
court  in  such  action  are  admisssible  in  evidence  to  prove 
the  allegations  of  the  indictment  and  to  show  that  the 
juror  to  whom  the  bribe  was  offered  served  as  a  juror  in 
the  trial  of  such  action.^® 

PENALTY, 

Bribery  of  executive  ofificer,^^  member  of  legislative  cau- 
cus, political  convention,^^^  etc.,  member  of  common  coun- 
cil, board  of  supervisors,  or  governing  body  of  any  public 
or  quasi-public  corporation,'®  imprisonment  in  state  prison 
from  one  to  fourteen  years.  Judicial  officer,  juror,  referee, 
arbitrator,'^  member  of  legislature,^"  one  to  ten  years. 
Witness,''  elector,--  not  exceeding  five  years.  Telegraph 
operator,  see  section  641  Penal  Code.  A  corrupt  attempt 
to  influence  a  juror,  etc.,  fine  not  exceeding  five  thousand 
thousand  dollars,  or  imprisonment  in  state  prison  not 
exceeding  five  years.  Penalty  is  the  same  for  the  one 
accepting  as  for  the  one  offering  a  bribe. 

FORM — JUROR    ASKING    FOR    BRIBE. 

That  on  the  — day  of  ,  190 — ,  a  certain  action  was 

pending,  undetermined  and  on  trial  in  the  Superior  Court 
of  the  state  and  county  aforesaid,  in  which  said  action 
E  F  was  plaintiff  and  G  H  was  defendant ;  that  said  A  B 
was  one  of  the  jurors  regularly  impaneled  and  sworn  to 
try  said  cause,  and  while  acting  as  such  juror  in  said  cause, 
wilfully,  unlawfullv  corruptly,  and  feloniously  did  ask 
and  agree  to  receive  of  and  from  one  C  D,  one  of  the 
attorneys  for  the  defendant  in  said  civil  action,  the  sum 

of  $ lawful  money  of  the  United  States,  upon  an 

agreement  which  he,  the  said  A  B,  then  and  there  offered 
to  make  and  enter  into  with  the  said  C  D,  that  in  consid- 

16  People  V.  Northey,  77  Cal.  618. 

17  Penal  Code   67. 
17a  Penal  Code  57. 

18  Penal  Code  165. 

19  Penal  Code  92,  93. 

20  Penal  Code  85. 

21  Penal  Code  137,   138. 

22  Penal  Code    53. 


100  CRIMINAL  LAW  AND  PROCEDURE. 

eration  of  the  payment  to  said  A  B  of  the  said  sum  of 
money,  the  said  A  B  would  cast  his  vote  and  render  his 
decision  as  a  juror  in  said  civil  action  in  favor  of  the 
defendant  in  said  civil  action." 

FORM BRIBERY  OF   EXECUTIVE  OFFICER. 

Then   and  there   being   an   executive   officer,   to   wit,   a 

police  officer  of  the  city  of  ,  county  of  , 

aforesaid  [or  other  officer,  describing  him]  wilfully,  unlaw- 
fully, corruptly,  and  feloniously  did  ask,  receive  and  agree 

to  receive  a  bribe  to  wit,  dollars,  lawful  money  of 

the  United  States  upon  an  understanding  and  agreement 
that  he  would  not  arrest  persons  engaged  in  violating 
section  330  of  the  Penal  Code  of  the  state  of  California ; 
nor  would  he  arrest  persons  engaged  in  violating  the  gam- 
ing ordinance  of  said  city  of [or  other  understand- 
ing, naming  it].^* 

FORM — BRIBERY    OF    JUDICIAL    OFFICER. 

A  certain  cause  in  which was  plaintiff  and 

was  defendant  was  pending  and  undetermined  before  C  D 
then  and  there  being  a  duly  elected,  qualified,  and  acting 

justice  of  the  peace  of  township,  county  and  state 

aforesaid,  and  that  the  said  A  B  [or  other  person,  naming 
him]  then  and  there  unlawfully,  wilfully,  corruptly,  and 
feloniously  did  give  to  the  said  C  D  a  justice  of  the  peace 
as  aforesaid    [or  other  officer,  describing  him]   a  sum  of 

money,  to  wit, dollars  lawful  money  of  the  United 

States,  as  a  bribe,  with  intent  then  and  there  and  thereby 
corruptly  and  unlawfully  to  influence  the  decision  of  the 
said  C  D  as  justice  of  the  peace  as  aforesaid,  in  said 
cause  then  and  there  pending  as  aforesaid  in  his  official 
capacity  as  such  justice,  in  favor  of  the  defendant  [or 
plaintiff]    [action,  vote,  or  opinion  of  other  officer]. 

23  People  V.  Squires,  99  Cal.  327. 

24  People  V.  Markham,  64  Cal.  157. 


CHAPTER  XI. 


BURGLARY. 

[Penal   Code,  sees.  459-483.] 


DEFINED. 

Is  the  entering  of  a  house,  room,  apartment,  tenement, 
shop,  warehouse,  store,  mill,  barn,  stable,  outhouse,  or  other 
building,  tent,  vessel,  or  railroad  car,  with  intent  to  com- 
mit grand  or  petit  larceny  or  any  felony.^  Burglary  com- 
mitted in  the  night  time  is  burglary  in  the  first  degree,  and 
burglary  committed  in  the  day  time  is  burglary  of  the  sec- 
ond degree.-  The  common  law  burglary  and  statutory 
burglary  have  few  elements  in  common,  and  the  plain  lan- 
guage of  the  statute  must  control.' 

THE    ENTRY. 

The  entry  is  burglarious  even  if  by  public  entrance  dur- 
ing business  hours,  if  it  is  made  with  the  intent  embraced 
within  the  definition.*  To  constitute  a  room  the  partition 
need  not  reach  to  the  ceiling  or  roof,°  and  the  crime  may 
be  committed  although  there  are  no  goods  in  the  house  to 
steal,"  and  although  the  house  was  not  and  never  had  been 
inhabited.'     A  laulding  includes  a  ticket  office.* 

INTENT. 

The  entry  must  be  made  with  the  intent  to  commit  one 
of  the  acts  named  in   the  definition,  that  is,  either  grand 

1  Penal  Code,  459;   People  v.  Young,  65  Cal.  225. 

2  Penal  Code  460. 

3  People  V.  Barry,  94  Cal.  481. 
*  People  V.  Barry,  94  Cal.  481. 
B  People  V.  Young,  65  Cal.  225. 

6  People  V.  Shaber,   32   Cal.   36. 

7  People  V.  Stlckman,  34  Cal.   242. 
s  People  V.  Young,  65  Cal.  225. 


102  CRIMINAL  LAW  AND  PROCEDURE. 

or  petit  larceny  or  a  felony,"  but  the  intent  need  not  be 
consummated.^'*  The  intent  is  a  simple  mental  operation 
to  be  determined  from  the  facts  in  the  case.^^  It  is  a 
question  of  fact  to  be  inferred  from  the  circumstances,^* 
and  the  intent  may  exist  although  there  were  no  goods*in 
the  house  to  steal. ^^  And  where  the  intent  on  entering  the 
particular  room  in  the  house  is  burglarious,  the  entry  of 
the  house  was  also  made  with  such  intent.^*  But  burglary 
of  a  particular  room  cannot  be  proved  by  an  entry  of 
another  room.^^  The  intent  must  be  to  deprive  the  owner 
of  property  permanently,  and  where  the  purpose  was  only 
to  deprive* of  it  temporarily  it  is  not  burglary.^*  The  intent 
to  commit  a  felony  must  be  the  felony  charged  in  the 
indictment.^''  But  it  is  immaterial  whether  the  intent  was 
to  commit  grand  or  petit  larceny.^*  The  felonious  intent 
is  not  shown  where  the  defendant  merely  acted  with  another 
under  directions  of  an  officer.^®  And  the  mere  stealing 
from  a:  building  without  other  circumstances  does  not  of 
itself  establish  a  prima  facie  case  of  burglary."" 

VENUE, 

In  a  prosecution  for  burglary  where  the  goods  are  'stolen 
in  one  county  and  carried  into  another  the  venue  may  be 
laid  in  either  courity,^^  but  when  laid  in  the  county  into 
which  they  are  afterwards  taken,  the  indictment  or  informa- 
tion should  state  all  of  the  jurisdictional  facts,  that  is,  it 
must  allege  the  fact  of  the  burglary  in  one  county  and  that 

0  People  V.  Barry,  94  Cal.   481. 

10  People  V.  Hall,   94  Cal.   595. 

11  People  V.  Morton,  72  Cal.  62. 

12  People  V.  Soto,  53  Cal.    415;   People  v.  Kennedy,  55  CaL 
201. 

13  People  V.  Shaber,  32  Cal.  36. 

14  People  V.  Young,    65   Cal.   225. 

15  People  V.  Barnes,  48  Cal.  551. 

16  People  V.  Brown,  105  Cal.   66. 
"  People  vs.  Mulkey,  65  Cal.   501. 
18  People  V.  Smith.   86   Cal.   238. 
i»  People  V.  Collins,    53    Cal.    185. 

20  People  V.  Barry,  94  Cal.  481. 

21  People  V.  Jochinsky,   106   Cal.   638. 


BURGLARY.  103 

the  goods  had  been  brought  into  the  county  into  which  the 
prosecution  is  had.^^ 

EVIDENCE. 

The  possession  of  Stolen  goods  is  not  conclusive  evidence 
of  guilt,^^  but  such  possession  may  be  shown  although  it 
was  the  next  day  and  several  miles  away  from  the  scene 
of  the  crime. ^^  And  it  is  admissible  in  evidence,  even 
though  it  appear  that  some  of  the  property  was  the  result 
of  another  crime,  and  thus  tends  to  prove  another  distinct 
offense.^'^  Circumstantial  evidence  alone  is  sufficient  to  sup- 
port a  conviction. ^^  The  possession  of  burglar's  tools  is 
admisssible  after  the  corpus  delicti  is  established  and  it  is 
shown  that  the  defendant  was  near  the  scene  of  the  crime 
at  the  time  of  its  commission,^^  but  they  are  not  admissible 
to  prove  stage  robbery  merely  because  a  prior  conviction 
of  burglary  is  included  in  the  indictment.^*  The  evidence 
of  intoxication  is  admisssible  to  determine  the  intent  on 
entering,^^  and  it  cannot  be  restricted  to  a  determination  of 
the  degree  of  crime,  even  when  committed  in  the  night 
time.3" 

NIGHT    TIME. 

At  common  law  it  was  not  considered  night  time  if 
there  was  sufficient  daylight  to  disclose  a  man's  features,'* 
but  under  the  code,  the  meaning  of  night  time  is  that  period 
between  sunset  and  sunrise.^^ 

INDICTMENT. 

It  is  sufficient  to  describe  the  offense  in  the  language  of 
the   statute.^^     And   the   indictment   may   allege   intent   to 

22  People  V.  Scott,  74  Cal.i.94;  People  v.  Jochinsky,  106  Cal. 
638. 

23  People  V.  Hannon,  85  Cal.  374. 

24  People  V.  Lowery,  70  Cal.   193. 

25  People  V.  Sears,    119    Cal.    267. 

26  People  V.  Flynn,   73   Cal.   511;    People  v.   Smith,   86  Cal. 
240. 

27  People  V.  Winters,  29  Cal.  658;   People  v.  Hope,  62  Cal. 
295. 

28  People  V.  Sansome,  84  Cal.  449. 

29  People  V.  Vincent,   95  Cal.   428. 

30  People  V.  Phelan,  93  Cal.  111. 

31  People  V.  Griffin,   19   Cal.   578. 

32  Penal  Code  450  and  463;   People  v.  Getty,  49  Cal.  581. 

33  People  V.  Shaber,  32   Cal.   36;    People  v.   Lewis,   61  Cal. 
360. 


104  CRIMINAL  LAW  AND  PROCEDURE. 

commit  grand  and  petit  larceny  and  the  proof  may  be 
made  of  either."  But  when  it  charges  an  intent  to  com- 
mit any  other  felony  it  must  state  the  particular  felony 
intended  to  be  committed  ;  it  is  not  sufficient  to  allege  that  he 
entered  with  the  intent  to  commit  a  felony  f^  but  it  need  not 
allege  the  facts  constituting  the  paricular  felony  intended  to 
be  committed.^*  But  where  the  indictment  charged  an 
intent  to  commit  larceny,  the  proof  of  an  intent  to  commit 
robbery  is  sufficient,  for  robbery  includes  all  the  elements 
of  larceny.^"  The  omission  of  the  word  "feloniously" 
from  the  indictment  is  not  ground  for  demur rrer.^*  It  need 
not  specify  the  value  of  the  goods  intended  to  be  stolen." 
Degree  need  not  be  specified  in  the  indictment.*"  Nor 
need  the  particular  time  of  the  night  be  alleged,  nor  if  it  be 
alleged,  need  it  be  proved,  as  it  is  not  of  the  essence  of  the 
crime. *^  And  where  the  indictment  charges  the  crime  with- 
out stating  any  time,  it  charges  both  degrees.*^  The  own- 
ership of  the  building  may  be  alleged  to  be  in  a  lodger 
who  is  occupying  the  room  entered.*^  Ownership  is  neces- 
sary to  be  alleged  only  when  it  constitutes  the  entire 
description  of  the  property.  It  is  only  for  the  purposes  of 
identification  and  description  that  it  need  be  alleged  at  all.** 
And  where  it  is  owned  in  partnership  it  is  not  necessary 
to  allege  a  copartnership  nor  that  the  copartners  were 
the  owners  of  the  building  or  its  contents.*^  The  jury  may 
presume  the  name  of  the  father  was  the  same  as  the  son  to 
show  ownership  of  a  house,*"  and  it  need  not  be  SDecified 
or  described  as  in  any  particular  town,  but  may  be  alleged 

34  People  V.  Hill,  94  Cal.  595;  People  v.  Smith,  86  Cal.  238. 

35  People  V.  Nelson,   58   Cal.    104. 

36  People  V.  Goldsworthy,  130  Cal.  600;  People  v.  Nelson. 
58  Cal.  107;  People  v.  Burns,  63  Cal.  614;  People  v. 
Smith.  86  Cal.  238. 

37  People  V.  Crowley,  100  Cal.  478. 

38  People  V.  Rogers,  81  Cal.  209. 

39  People  V.  Ah  Ye.   31   Cal.   452. 

*o  People  V.  Jefferson,  52  Cal.  452;  People  v.  Barnhart,  59 
Cal.   381. 

41  People  V.  Burgess,  35  Cal.  115. 

42  People  V.  Barnhart,  59  Cal.  381. 

43  People  V.  St.  Clair,  38  Cal.  137. 

44  People  V.  Parker,  91   Cal.  91. 

45  People  V.  Rogers,  81  Cal.  209. 

46  People  V.  McGilver,  67  Cal.  55. 


BURGLARY.  '  105 

generally  to  be  located  in  the  county  in  which  the  cause 
is  tried. ■'^  It  need  be  only  alleged  with  sufficient  precision 
to  enable  the  defendant  to  understand  the  accusation  and 
the  nature  of  the  charge  he  is  intended  to  meet.**  So  the 
variance  is  not  material  where  the  information  charged 
ownership  in  one  person  and  the  evidence  proved  another 
person  as  having  an  interest  in  it  also,*"  or  where  the  inter- 
est of  one  owner  is  set  out  incorrectly.^**  And  under  an 
allegation  of  the  ownership  in  John  Doe,  proof  of  the  own- 
ership in  a  woman  is  no  variance,^^  nor  in  a  description 
where  it  is  alleged  the  entrance  was  made  in  a  basement 
and  the  proof  show  an  entrance  in  a  cellar.*^^ 

VERDICT. 

A  verdict  of  conviction  of  the  first  degree  will  not  be 
disturbed  on  evidence  which  shows  the  commission  of 
the  crime  was  between  the  afternoon  and  midnight,^'  and 
a  general  verdict  is  sufficient  for  a  conviction  although  con- 
taining matters  that  are  surplusage. °*  But  a  verdict  of 
guilt  generally,  without  stating  the  degree  is  erroneous.®^ 
Under  a  conviction  of  the  second  degree  the  defend- 
ant is  not  prejudiced  by  the  court  failing  to  point  out  the 
distinction  between  the  two  degrees. °®  The  verdict  will 
not  be  reversed  when  the  burglary  is  proven  and  the  prop- 
erty that  was  stolen  is  shown  to  have  been  found  in  the 
possession  of  the  defendant. ^^ 

PENALTY. 

First  degree,  imprisonment  in  slate  prison  from  one  to 

47  People  V.  Geiger,   116   Cal.   440. 

48  People  V.  Edwards,    59   Cal.    359;    People   v.    Bitancourt, 
74  Cal.  188;   People  v.  Main.  114  Cal.  634. 

43  People  V.  Bitancourt,  74  Cal.  188. 

50  People  V.  Main,    114    Cal.     632. 

51  People  V.  White,   116  Cal.    17. 

52  People  V.  Goldsworthy,  130  Cal.  600. 

53  People  V.  McCarty,   117  Cal.  65. 

54  People  V.  Jochinsky,  106  Cal.  638;   People  v.  Cummings, 
117  Cal.    500. 

55  People  V.  Travers,    73    Cal.    580;     People    v.    Lee    Yune 
Chong,  94  Cal.  386., 

56  People  V.  Urquidas,   96   Cal.   239. 

57  People  V.  Sansome,  98  Cal.  235. 


106  CRIMINAL  LAW  AND  PROCEDURE, 

fifteen  years ;  second  degree,  imprisonment  in  state  prison 
not  less  than  five  years.  Where  the  defendant  has  suflfered 
a  former  conviction  a  sentence  of  ten  years  imprisonment 
for  an  attempt  to  commit  burglary  does  not  exceed  the 
maximum  term  allowed,^^  and  upon  a  conviction  of  an 
attempt  he  may  be  sentenced  to  one-half  of  the  longest 
term  of  imprisonment  prescribed  for  the  offense.'" 

FORM — BURGLARY. 

Wilfully,  unlawfully,  feloniously,  and  burglariously  did 
enter  the  house,  room,  dwelling,  and  apartment  of  one  C  D 
[or  other  building,  tent,  vessel,  or  car,  naming  it]  with  the 
intent  then  and  there  and  therein  wilfully,  unlawfully,  and 
feloniously  to  commit  the  crime  of  larceny  [or  any  felony, 
naming  it].*° 

CEMETERIES,  see  SEPULCHER,  VIOLATING. 

CHEAT,  see  FALSE  PERSONATION  and  FALSE  PRETENSES. 

CHILD  STEALING,  see   KIDNAPPING. 

58  People  V.  McGregor,  88  CaL  140. 

59  Ex  parte  Hope,  59  Cal.  423. 

80  People  V.  Hall,  94  Cal.  595;  People  v.  Henry,  77  Cal.  445. 


CHAPTER  XII. 


COIVIPOUNDIXG  CRIJVIES. 

[Penal   Code.  sec.   153.] 


DEFINED. 

Compounding  a  crime  is  done  by  a  person  who,  having 
knowledge  of  the  actual  commission  of  a  crime,  takes 
money  or  property  of  another,  or  any  gratuity  or  reward 
or  any  engagement  or  promise  thereof,  upon  any  'agree- 
ment or  understanding  to  compound  or  conceal  such  crime, 
or  to  abstain  from  any  prosecution  thereof,  or  to  withhold 
any  evidence  thereof,  except  in  cases  provided  for  by  law 
in  which  crimes  may  be  compromised  by  leave  of  court.^ 
Knowledge  of  the  actual  commission  of  the  crime  and  the 
taking  of  money  or  property  of  another,  upon  an  agree- 
ment or  understanding  to  compound  or  conceal  such  crime 
are  the  facts  necessary  to  constitute  the  offense ;  but  there 
can  be  no  knowledge  of  the  commission  of  the  crime  unless 
it  was  actually  committed.* 

PENALTY. 

Imprisonment  in  the  state  prison  not  exceeding  five  year's, 
or  in  a  county  jail  not  exceeding  one  year,  where  the  crime 
was  punishable  by  death  or  imprisonment  in  the  state 
prison  for  life.  By  imprisonment  in  the  state  prison  not 
exceeding  three  years,  or  in  the  county  jail  not  exceeding 
six  months,  where  the  crime  was  punishable  by  imprison- 
ment in  the  state  prison  for  any  other  term  than  life.  By 
imprisonment  in  the  county  jail  not  exceeding  six  months, 

1  Penal  Code  153. 

2  People  V.  Bryon,  103  Cal.  675. 


108  CRIMINAL  LAW  AND  PROCEDURE. 

or  by  fine  not  exceeding  five  hundred  dollars,  where  the 
crime  was  a  misdemeanor.^ 

FORM — COMPOUNDING   FELONY. 

That  one  M  H,  on  the  —  day  of ,  190 — ,  wilfully, 

unlawfully,   and   feloniously  did  steal  and   take   from  the 

person  of  E  O  the  sum  of  dollars,  lawful  money 

of  the  United  States,  said  money  being  the  property  of  and 
belonging  to  the  said  E  O ;  that  said  W  B,  at  the  same 
time  and  place,  having  knowledge  of  the  commission  of 
said  crime  by  said  M  H,  as  aforesaid,  did  take  and  receive 

from  said  M  H  the  sum  of dollars,  lawful  money  of 

the  United  States,  upon  the  agreement  and  understanding, 
Avilfully,  unlawfully,  and  feloniously  made  and  entered  into 
with  said  M  H,  that  he,  the  said  W  B,  would  compound 
and  conceal  the  crime  which  had  been  committed  as  afore- 
said, by  said  M  H.* 

CONCEALMENT   OF    PERSON    CHARGED   WITH    CRIME,   see 
ACCESSORY. 

8  Penal  Code  153. 

*  People  V.  Bryon,  103  Cal.  676. 


CHAPTER  XIII. 


CONSPIRACY. 

[Penal  Code,  sec.  182.] 


Conspiracy  is  an  agreement  of  two  or  more  persons  to 
do  an  unlawful  act,  or  a  lawful  act  by  unlawful  means.* 
These  acts  are  enumerated  in  the  code  as  an  agreement  to 
falsely  and  maliciously  indict  or  procure  another  to  be 
charged  or  arrested  for  crime ;  or  falsely  to  move  or  main- 
tain any  suit,  action,  or  proceeding-,  or  to  cheat  or  defraud 
any  person  of  property  by  criminal  means,  or  to  obtain 
property  by  false  pretenses;  or  to  commit  any  act  injurious 
to  public  health  or  morals,  or  for  the  perversion  or  obstruc- 
tion of  justice,  or  due  administration  of  the  law.^  The 
crime  of  conspiracy  cannot  be  committed  by  one  person 
alone,  and  husband  and  wife,  being  one  person  in  law, 
cannot  be  guilty  of  a  conspiracy.^  But  on  a  prosecution 
one  conspirator  may  be  separately  informed  against,  tried, 
and  convicted,  and  the  naming  of  the  co-conspirator  in  the 
indictment  does  not  render  it  bad.*  It  is  necesssary  to 
allege  and  prove,  in  addition  to  the  conspiracy,  some  overt 
act  done  in  furtherance  and  pursuance  thereof. °  A  con- 
spiracy is  not  an  element  of  murder,  and  is  important  oxily^ 
as  a  means  of  showing  a  joint  commission  of  crime. ^ 

1  People  V.  Richards,  67  Cal.  415. 

2  Penal  Code  182. 

:i  People  v.  Miller,   82   Cal.    107. 
■*  People  V.  Richards,  67  Cal.  412. 

5  People  V.  Daniels,   105  Cal.   262. 

6  People  V.  Holmes,    118    Cal.    444. 


110  CRIMINAL  LAW  AND  PROCEDURB. 

PENALTY. 

Imprisonment  in  county  jail  not  exceeding  one  year,  or 
fine  not  exceeding  one  thousand  dollars,  or  both. 

FORM — CONSPIRACY   TO   COMMIT   A    CRIME. 

Wilfully  and  unlawfully  did  conspire  and  agree  with 
one  C  D  to  commit  the  crime  of  robbery,  to  wit,  by  then 
and  there  feloniously  and  by  means  of  force  and  fear  to 

take  dollars,  lawful  money  of  the  United  States, 

from  the  person  and  immediate  presence  of  one  E  V,  the 
owner  thereof,  and  against  the  will  of  said  E  F;  and  the 
said  A  B  in  pursuance  and  furtherance  of  said  conspiracy 
and  to  eflFect  the  object  thereof,  did,  on  or  about  the  said 
day  last  named,  assault  the  said  E  F  and  consummate  the 
purpose  of  said  conspiracy.^ 

FORM — TO   FALSELY    CHARGE   WITH    A   CRIME. 

Did,  among  themselves,  unlawfully  conspire,  combine, 
confederate  and  agree  together,  falsely  to  charge,  and  to 
have  feloniously  charged,  one  E  F,  before  one  of  the  jus- 
tices of  the  peace  of  said  county,  on  and  by  the  oath  of  the 
said  A  B,  with  the  crime  of  robbery  committed  against 
and  upon  the  person  of  said  A  B,  and  to  procure  the  issu- 
ing of  a  warrant  thereupon  by  said  justice  of  the  peace  for 
the  arrest  of  the  said  E  F  upon  the  charge  aforesaid;  and 
in  furtherance  and  pursuance  of  said  conspiracy,  and  to 
eflFect  the  object  thereof,  the  said  A  B  did  on  the  —  day  of 

,  190 — ,  on  and  by  his  oath  before  one  G  H,  a  justice 

of  the  peace  in  and  for  the township,  of  the  county 

and  state  aforesaid,  falsely  and  feloniously  charge  the  said 
E  F  with  the  crime  of  robbery  as  aforesaid,  and  procured 
from  the  said  justice  of  the  peace  a  warrant  for  his  arrest. 

T  People  V.  Richards,   67  Cal..  412. 


CHAPTER  XIV 


CONTK]VlF»T. 


Contempt  is  a  quasi  criminal  proceeding,^  but  is  not  a 
misdemeanor,-  except  when  it  consists  of  disorderly,  con- 
temptuous, or  insolent  behavior  committed  during  the  sit- 
ting of  a  court  or  referee,  in  its  immediate  view  and  pres- 
ence, or  of  a  breach  of  the  peace  tending  directly  to  inter- 
rupt the  proceedings  of  a  court  or  wilful  disobedience  or 
resistance  to  a  lawful  order  or  process  of  a  court  or  contu- 
macious and  unlawful  refusal  to  be  sworn  as  a  witness  or  to 
answer  any  material  question,  or  the  publication  of  a  false  or 
grossly  inaccurate  report  of  the  proceedings  of  a  court,  or 
presenting  to  a  member  of  the  court,  having  power  to  pass 
sentence  upon  a  prisoner  under  conviction,  any  representa- 
tion of  any  kind  in  aggravation  or  mitigation  of  the  pun- 
ishment to  be  imposed  upon  such  person,  except  as  pro- 
vided by  law.^  It  need  not  be  prosecuted  as  a  separate  and 
distinct  proceeding.* 

WHO    MAY   PUNISH    FOR. 

Courts  may  punish  for  contempts  to  process,  and  issue 
such  writs  as  are  necesssary  to  the  exercise  of  their  juris- 
diction.^    The  court  making  the  order  violated  alone  has 

1  Schwarz  v.  Superior  Court,  111  Cal.  106;  Ex  parte  Hollis, 
59  Cal.  405;  Ex  parte  Ah  Men.  77  Cal.  200;  Ex  parte 
Gould,  99  Cal.  362;  McClatchy  v.  Superior  Court,  119 
Cal.  419;  Ex  parte  Henshaw.  73  Cal.  486;  In  re  Jessup, 
81  Cal.   482. 

2  In  re  Fil  Ki,  80  Cal.  201. 

3  Penal  Code  166. 

*  Ex  parte  Ah  Men,  77  Cal.  198;  In  rei  Fil  Ki,  80  Cal.  204; 

People  V.  Durrant,  116  Cal.  209. 
5  In  matter  of  Cohen,  5  Cal.  495;  White  v.  Superior  Court, 

110  Cal.  66. 


112  CRIMINAL  LAW  AN1>  PROCEDURE. 

power  to  punish  therefor."  The  Superior  Court  has  no 
jurisdiction  to  punish  for  contempt  committed  before  a 
coroner.'  The  order  must  be  served  before  the  party  can 
be  punished  for  its  violation,  and  the  mere  delivery  of  a 
certified  copy  in  another  state  is  not  service.* 

WHAT  ACTS   ARE   CONTEMPT. 

The  following  acts  have  been  held  to  constitute  con- 
tempt :  A  newspaper  publication  likely  to  affect  the  trial 
pending  the  trial,"  sending  insulting  letters  to  a  grand 
jury,"  defying  the  authority  of  the  grand  jury,  by  a  wit- 
ness." disobedience  of  an  order  to  pay  alimony ,^'^  but  not 
where  the  defendant  is  unable  to  pay  it^^  Contempt  may 
be  committed  by  abuse  of  process  of  court,^*  by  violation 
of  an  order  of  probate  which  the  court  had  jurisdiction  to 
make,'°  by  an  employee  of  a  telegraph  company  refusing 
to  deliver  a  message  to  be  used  in  evidence,"  by  a  refusal 
to  produce  a  prisoner  in  compliance  with  a  writ  of  habeas 
corpus,"  by  obstructing  the  execution  of  a  search  war- 
rant," by  transferring  property  pending  a  motion  for  its 
delivery  to  the  sheriff  in  supplemental  proceedings,^®  but 
it  is  not  contempt  to  set  up  relevant  and  material  matters 
in  an  affidavit  showing  bias  and  prejudice  of  the  judge.^" 

«  Huerstal  v.  'Mulr,  62  Cal.  481;   People  v.  County  Judge,; 

27  Cal.  152. 
"  Kuhlman  v.  Superior  Court,  122  Cal.  636. 
s  Johnson  v.  Superior  Court,    63    Cal.    578;     Hennessy  v. 

Nlchol.  105  Cal.  142. 
»  Ex  parte  Barry,  85  Cal.  605;   Dailey  v.  Superior  Court, 

112  Cal.  98;   People  v.  Durrant.  116  Cal.  209;   McClatchy 

V.  Superior  Court,  119  Cal.  428. 
>«  In  matter  of  Tyler,  64  Cal.  434. 
"  In  re  Gannon.  69  Cal.  541. 
«2  Ex  parte  Perkins,  18  Cal.  60;   Ex  parte  Spencer,  83  Cal. 

465;  Ex  parte  Gordan,  95  Cal.  378;  Ex  parte  Cottrell.  59 

Cal.  417. 
IS  People  V.  Todd,  119  Cal.  57. 
«*  Ex  parte  Acock.  84  Cal.  50. 
»B  Ex  parte  Cohn,  55  Cal.  193;  Ex  parte  Mollis,  59  Cal    412- 

Ex  parte  Smith,  53  Cal.  204;   Wiggin  v.  Superior  Court. 

68    Cal.    400. 
'«  Ex  parte  Jaynes,  70  Cal.  638. 
'"  Ex  parte  Sternes,  77  Cal.  156. 
'«  In  re  Lowenthal.  74  Cal.  109. 
10  Ex  parte  Kellogg,  64  Cal.  343. 
20  Works  V.  Superior  Court,  130  Cal.  304. 


CONTEMPT.  113 

It  was,  however,  under  a  statute  which  did  not  allow  a 
change  of  venue  for  such  causes.^^  The  publication  of  the 
truth  concerning  legal  proceedings  where  in  response  to 
unjust  charges  upon  the  veracity  of  the  publisher,  without 
intent  to  improperly  influence  the  proceeding,  does  not  con- 
stitute contempt,  as  a  judge  on  the  bench  has  no  more  right 
than  any  other  person  to  cast  aspersions  upon  the  character 
of  a  person  unjustly,  and  the  party  upon  whom  such  asper- 
sions are  cast  nas  a  right  to  defend  himself  against  them.^* 
Contempt  proceedings  cannot  be  based  upon  the  disobed- 
ience of  a  decree  not  entered,^^  nor  of  an  order  made  in  a 
cause  not  pending.^*  Contempt  proceedings  cannot  be 
used  for  the  purpose  of  adjudicating  title  to  property,^^  nor 
to  compel  a  person  to  be  a  witness  against  himself,  nor  to 
testify  to  any  matter  which  may  tend  to  incriminate  him.^* 
While  the  defendant,  if  present  at  the  instance  of  the  cita- 
tion, need  not  be  present  at  the  judgment,^^  yet  no  con- 
tempt can  be  based  on  a  failure  to  answer  the  order  to 
show  cause  on  a  person  who  is  represented  by  an  attor- 
ney.^® The  liability  to  civil  or  criminal  actions  does  not 
aflFect  the  right  of  the  court  to  punish  for  contempt  also,^* 
and  a  prior  punishment  does  not  absolve  from  a  failure  to 
obey  a  subsequent  order.^°  But  a  new  judgment  cannot 
be  entered  in  addition  to  the  original  judgment  for  the 
same  offense.  The  power  of  the  court  to  enter  another  is 
lost.^^     An  order  not  to  commit  contempt  is  not  proper.^* 

21  Ex  parte  Jones,  103  Cal.  397. 

22  McClatchy  v.  Superior   Court,    119   Cal.    413. 

23  Cosby  V.  Superior  Court,   110  Cal.  45. 

24  Ex  parte  Cohen,  6  Cal.  318. 

25  Ex  parte  Hollis,  59  Cal.  405;  Deering  v.  Richardson- 
Kimball  Co.,  109  Cal.  83;  Ex  parte  Clark,  110  Cal.  407; 
Bayers  v.  Superior  Court,  84  Cal.  645;  Tomsky  v.  Superior 
Court,  131  Cal.  623;  Ex  parte  Casey,  71  Cal.  269. 

26  Ex  parte  Clarke,  103  Cal.  352;  Ex  parte  Cohen,  104  Cal. 
530;  Ex  parte  Gould,  99  Cal.  360;  Cosby  v.  Superior 
Court,  110  Cal.  52;  McClatchy  v.  Superior  Court,  119  Cal. 
419. 

27  In  re  Clark.  125  Cal.  389. 

28  Ex  parte  Gordan,  92  Cal.  478;  Foley  v.  Foley,  120  Cal.  39. 

29  Ex  parte  Acock,  84  Cal.  50.  , 

30  Ex  parte  Clark,  110  Cal.  405. 

31  Barry  v.  Superior  Court,  91  Cal.  486;  In  re  Barry,  94  Cal. 
5G3. 

32  Dailey  v.  Superior  Court,  112  Cal.  94. 

CRIMES--8 


114  CriwIiNaL  law  and  procedure. 

A  failure  to  comply  with  an  order  pending  an  appeal  there- 
from is  not  contempt,*^  where  the  judgment  ib"-  stayed  by 
appeal.'* 

IN  THE  PRESENCE  OF  THE  COURT. 

'Con'tempt  committed  in  the  presence  of  the  court  may  be 
•punished  peremptorily  without  examination  and  proof,  but 
where  committed  out  of  the  presence  of  the  court  the  accused 
is  entitled  to  be  heard  in  his  defense.^^  Where  it  is  com- 
mitted in  the  presence  of  the  court  a  delay  by  the  court  to 
vpunish  and  afterwards  attempting  to  proceed  without  notice 
is  Vbtd.-'"'  A  refusal  to  produce  a  prisoner  on  habeas  cor- 
pus is  contempt  in  the  presence  of  the  court."  Where  the 
contempt  is  committed  out  of  the  presence  of  the  court,  it 
must  be  founded  upon  affidavits  and  citations.^*  It  is  not 
necesssary  that  the  affidavit  set  forth  the  pendency  of  the 
cause  and  the  provisions  of  the  order  violated,  as  it  is  not 
a  separate  proceeding  and  the  court  takes  judicial  notice  of 
such   fact.'* 

VIOLATION  OF  AN   ORDER  OF   COURT. 

Contempt  cannot  be  predicated  on  a  refusal  to  answer 
on  the  ground  that  the  witness  waived  the  privilege  by  testi- 
fying at  the  preliminary.*"  The  question  upon  which 
refusal  is  based  must  be  legal  and  pertinent  to  the  issue 
and  the  contempt  proceedings  must  show  these  facts.*^  If 
tlie  witness  refuse  to  answer  upon  the  ground  that  it  is 
not  material,  he  makes  the  refusal  at  his  peril,  and  if  one 
question   is  proper  and   pertinent,   the   judgment   of   con- 

38  Ex  parte  Orford,  102  Cal.  656;  Ruggles  v.  Superior  Court, 

103  Cal.  128. 
3*  Mark  v.  Superior  Court,  129  Cal.   1;    Foster  v.   Superior 

Court,  115  Cal.  279;  Ex  parte  Queirolo,  119  Cal.  636. 
35  People  V.  Turner,  1  Cal.  152. 
30  In  re  Foote.  76  Cal.  543. 
3T  Ex  parte  Sternes,  77  Cal.  156. 
38  Ex   parte  Rickert,   126   Cal.   244;    Ex   parte  Clarke,   126 

Cal.  235. 
3»  Ex  parte  Ah  Men,  77  Cal.  198. 
*o  Overend  v.  Superior  Court,  131  Cal.  280. 
«i  Ex  parte  Clarke,  126  Cal.   235;    Ex  parte  Rowe    7  Cal. 

181;  Ex  parte  Brown,  97  Cal.  83;  Ex  parte  Zeehandelaar, 

71  Cal.  238;   Ex  parte  Henshaw,  73  Cal.  510. 


CONTEMPT.  115 

tempt  will  stand/^  Where  a  witness  refuses  to  be  sworn 
or  to  testify  each  refusal  is  a  separate  contempt.*^  But 
where  the  party  is  imprisoned  for  refusal  to  answer  ques- 
tions, he  will  be  discharged  on  the  abatement  of  the  action 
for  which  the  questions  were  pertinent,**  as  it  will  no  longer 
be  pertinent  to  answer  the  same.*'^  But  the  defendant  may 
be  imprisoned  for  refusal  to  testify  for  a  time  certain,  and 
cannot  question  the  sentence  on  the  ground  that  it  should 
be  until  he  complies  with  the  order,  without  he  shows  he 
was  ready  during  such  time  to  comply.*®  The  justice 
court  may  imprison  for  non-complance  with  a  valid  order,*' 
or  to  pay  a  fine  imposed  for  contempt**  until  the  fine  is 
paid.*®  The  court  has  power  to  enforce  the  payment  of  a 
fine  by.  imprisonment  where  the  oflFense  is  sending  insult- 
ing letters  to  a  grand  jury.^**  Where  the  punishment  is 
fine  and  imprisonment,  a  release  from  custody  on  habeas 
corpus  does  not  affect  the  validity  of  the  fine,^^  but  the 
judgment  should  show  on  its  face  the  facts  upon  which  the 
adjudication  is  made.^-  The  proceedings  must  show  the 
jurisdiction  of  the  court,^^  and  specify  the  acts  upon  which 
the  order  is  based. ^*  The  findings  and  commitment  should 
show  that  it  is  within  the  power  of  the  accused  to  comply 

<2  In  re.  Rogers,  129  Cal.  468;  Ex  parte  Zeehandelaar,  71 
Cal.  238. 

43  Ex  parte  Stice,  70  Cal.  53;  Overend  v.  Superior  Court, 
131  Cal.  280. 

44  Ex  parte  Rowe,  7  Cal.  176. 

45  Ex  parte  Overend,  122  Cal,  201;  Adams  v.  Haskell,  6  Cal. 
316. 

46  In  re  Clarke,  125  Cal.  389. 

47  Ex  parte  Latimer.  47  Cal.  131. 

48  Ex  parte  Abbott,  94  Cal.  333. 

49  Ex  parte  Crittenden,  62  Cal.  534;  Ex  parte  Hollis,  59 
Cal.  408;  Matter  of  Tyler,  64  Cal.  438;  Tyler  v.  Connolly, 
65  Cal.  30;  In  re  Buckley,  69  Cal.  3;  Ex  parte  Henshaw, 
73  Cal.  495;  Ex  parte  Gould,  99  Cal.  362;  Ex  parte  Abbott, 
94  Cal.  334. 

50  Matter  of  Tyler,  64  Cal.  434. 

51  Grady  v.  Superior  Court,  64  Cal.  155. 

5,2  People  V.  Turner,  1  Cal.  152;  Ex  parte  Field,  1  Cal.  187. 

63  Overend  v.  Superior  Court,  131  Cal.  280;  People  v.  Rowe, 
7  Cal.  183;  Schwarz  v.  Superior  Court,  111  Cal.  112;' 
Batchelder  v.  Moore,  42  Cal.  415;  Ex  parte  Zeehandelaar, 
71  Cal.  238. 

54  Ex  parte  Rowe,  7  Cal.  181. 


il6  CRIMINAL  LAW  AND  PROCEDURE. 

with  the  order  of  the  court,  where  the  imprisonment  is  for 
refusal." 

U.N'L.WVFLL  OMDEKS. 

The  party  may  disregard  an  unlawful  order  ot  court,  and 
the  disobedience  of  an  order  which  the  court  has  no  juris- 
diction to  make,  is  not  conten:pt.°"  and  habeas  corpus  will 
lie  to  release  from  custody  for  a  refusal  to  obey  an  unauthor- 
ized order."*^ 

APPEAL    AXD    REVIEW. 

A  judgment  of  contempt  is  final  and  conclusive,'*  and 
cannot  be  attacked  collaterally'*''  if  within  the  jurisdiction 
of  the  court  rendering  it.""  It  is  not  reviewaljle"*  and  is  not 
appealable.®-  But  if  the  defendant  is  unlawfully  impris- 
oned he  must  proceed  by  some  other  remedy."'^  Where  it 
appears  that  the  court  had  jurisdiction,  and  the  judgment 
sets  forth  the  decree  violated  and  all  the  facts  necesssary  to 
the  validity  of  the  order,  the  accused  cannot  be  discharged 
on  habeas  corpus,"*  nor  can  the  question  that  the  affidavit 
was  made  on  information  and  belief  be  so  raised.*^  The 
court  has  power  to  determine  the  proceeding,  and  error  on 
its  ruling  cannot  be  reached  by  writ  of  review.""  After  an 
order  discharging  for  contempt  of  another  court,  he  can- 
not be  imprisoned  again  for  the  same  contempt.®" 

••'•••  Ex  parte  Cohen.  6  Cal.  318;  Ex  paite  Siivii.'l2!  Cal.  293. 

5«  Ex  parte  Cohen,  5  Cal.  495;  Ex  parte  Brown,  97  Cal.  83; 
Ex  parte  Rowe,  7  Cal.  181;  Ex  parte  Zeehandelaar,  71 
Cal.  238;  Ex  parte  Clarke,  126  Cal.  235;  People  v.  O'Neil, 
47  Cal.  109;  Ex  parte  Hollis,  59  Cal.  408;  Huerstal  v. 
Muir,  62  Cal.  481. 

•"  Ex  parte  Gordnn,  92  Cal.  478. 

58  In  matter  of  Cohen,  5  Cal.  495. 

»»  Ex  parte  Ah  Men.  77  Cal.  198. 

«o  Dewey  v.  Superior  Court,  81  Cal.  64. 

«J  Sayers  v.  Superior  Court,  84  Cal.  642. 

82  In  re  Vance.  88  Cal.  262;  Tyler  v.  Connolly,  65  Cal.  30; 
Cosby  V.  Superior  Court,  110  Ca!.  45;  Sanchez  v.  Newman, 
70  Cal.  210;  Ex  parte  Clancey.  90  Cal.  556.  It  was  for- 
merly held  th^t  the  judgment  was  appealable  on  the 
question  of  jurisdiction.  People  v.  O'Neil,  47  Cal.  109; 
Ex  parte  Hollis,  59  Cal.  408;  Ex  parte  Rowe,  7  Cal.  176; 
Ware  v.  Robinson,  9  Cal.  111. 

«3  People  V.  Kuhlman,    118    Cal.    140. 

«<  Ex  parte  Vance,  88  Cal.  281. 

«5  Ex  parte  Acock,  84  Cal.  50. 

00  White  V.  Superior  Court,  110  Cal.  66. 

«T  Grady  v.  Superior  Court,  64  Cal.  155. 


CONTEMPT.  117 

CONTEMPT    OF    LEGISLATIVE    BODIES. 

A  legislative  body  has  all  the  powers  and  privileges 
which  are  necessary  to  the  proper  exercise,  in  all  respects, 
of  its  appropriate  functions.  Such  powers  and  privileges 
are  inherent  in  a  legislative  body,  and  are  to  be  ascertained 
primarily  by  a  reference  to  the  common  parliamentary  law. 
It  may  compel  the  attendance  of  all  persons  within  the 
limits  of  its  constituency,  as  witnesses,  in  regard  to  sub" 
jects  on  which  it  has  power  to  act,  and  into  which  it  insti- 
tutes an  investigation.  Such  witnesses  give  their  testi- 
mony under  the  penalty  of  being  adjudged  guilty  of  con- 
tempt, and  punished,  if  they  testify  falsely ;  and  they  may 
be  compelled,  by  process  of  contempt,  to  testify,  when  with- 
out legal  cause  they  refuse  to  do  so.  When  a  charge  of 
bribery  is  brought  against  members  of  a  body  of  the  legis- 
lature, such  body  has  power  to  investigate  the  charge,  and 
to  summon  the  person  making  the  charge  before  its  bar  as 
a  witness  concerning  the  same,  and  to,  commit  him  for  con- 
tempt for  refusing  to  testify  without  sufficient  legal  cause.^^ 

CONVEYANCE,  see  FORGERY. 
COUNTERFEITING,   see    FORGERY. 

«8  Ex  parte  McCarthy,  29  Cal.  396;  Ex  parte  Lawrence,  116 
Cal.  298. 


CHAPTER  XV. 


CRIMB  AGAINST  NATURE. 

[Penal  Code,  sees.  286,  287.] 


This  is  the  offense  of  copulation  per  anum  upon  an  ani- 
mal or  human  being,  but  it  does  not  cover  any  other  form 
of  unnatural  carnal  intercourse.^  Putting  in  fear  is  not 
an  element  of  the  offense,*  and  an  assault  is  not  included 
in  the  crime  except  where  committed  upon  a  human  being 
without  his  consent.^  The  allegation  of  a  Christian  and 
surname  is  sufficient  to  show  a  human  being.* 

PENALTY. 

Imprisonment  in  the  state  prison  not  less  than  five  years. 

FORM ASSAULT. 

Wilfully,  unlawfully,  and  feloniously  did  make  an  assault 
upon  one  C  D,  with  intent  to  commit  in  and  upon  the  per- 
son of  said  C  D  the  infamous  crime  against  nature.* 

FORM WITHOUT   AN    ASSAULT. 

Wilfully,  unlawfully,  and  feloniously  did  commit  the 
infamous  crime  against  nature,  with  and  upon  one  C  D 
[or  "a  certain  animal,  to  wit,  a  cow,"  or  other  animal, 
describing  it]  by  then  and  there  having  carnal  knowledge 
of  the  body  of  said  C  D  [or  animal,  naming  it]. 

DEADLY  WEAPON,  see   DISTURBANCE  OF  THE  PEACE. 

DEED,  see  FORGERY. 

DEFAMATION,  see   LIBEL. 

1  People  V.  Boyle,  116  Cal.  658. 

2  People  V.  Wilson,  119  Cal.  384. 
»  People  V.  Hickey,  109  Cal.  275. 
<  People  V.  Moore,  103  Cal.  508. 

6  People  V.  Williams,  59  Cal.  398. 


CHAPTER  XVI. 


DKFRAUDING  INN   KEBPKRS, 

[Penal  Code,  sec.  537.] 


The  act  contemplates  three  classes  of  offenses :  ( i ) 
Those  who  obtain  food  or  accommodations  at  an  inn  or 
boarding  house  without  paying  therefor,  with  intent  to 
defraud;  (2)  those  who  obtain  credit  thereat  by  the  employ- 
ment of  any  false  pretenses;  (3)  those  who,  after  obtain- 
ing such  credit  or  accommodation,  abscond  and  surrepti- 
tiously remove  their  baggage  without  paying  their  score. 
This  act  is  constitutional.^ 

PENALTY. 

Imprisonment  in  county  jail  not  exceeding  six  months,  or 
fine  not  exceeding  five  hundred  dollars,  or  both. 

FORM — DEFRAUDING  INN   KEEPERS. 

Unlawfully,  wilfully,  and  fraudulently,  and  with  intent 
to  defraud,   one  C  D,   the  proprietor  thereof,   did   obtain 

at  the  Inn  and  boarding  house  of  the  said  C  D, 

food  and  accommodation,  without  paying  therefor. 

FORM DEFRAUDING    BY    FALSE    PRETENSES. 

With  intent  to  defraud  one  C  D  of  his  property,  unlaw- 
fully, knowingly,  falsely,  and  designedly  did  represent  and 
pretend  to  said  C  D,  that  two  certain  trunks  which  the 
said  A  B  then  and  there  exhibited,  produced  and  deposited 
with  the  said  C  D,  contained  much  valuable  merchandise, 
and  was  owned  by  the  said  A  B ;  that  said  merchandise  wa» 
of  the  aggregate  value  of  five  hundred  dollars ;  and  the 
said  C  D  then  and  there  believing  said  false  pretenses  and 

1  Ex  parte  Williams,   121  Cal.  328;    Ex  parte  Ruffin,  11S> 
Cal.  487. 


120  CRIMINAL  LAW  AND  PROCBDURE. 

representations  and  being  deceived  thereby,  was  induced 
by  reason  thereof  to  give  and  extend  to  the  said  A  B  credit 

and  accommodation  at  the Inn  and  boarding  house, 

which  was  then  and  there  owned  and  conducted  by  the  said 
C  D:  that  said  credit  was  secured  and  obtained  from  the 
said  C  D  solely  by  reason  of  said  false  pretenses  and  repre- 
sentations and  with  the  intent  of  the  said  A  B  unlawfully, 
knowingly,  and  designedly  to  defraud  the  said  C  D;  that 
said  trunks  did  not  contain  any  merchandise  whatever,  but 
were  filled  with  stones  and  rubbish,  and  had  not  any  value 
in  excess  of  the  sum  of  five  dollars,  as  the  said  A  B  then 
and  there  well  knew. 

FORM — DEFRAUDING    BY    ABSCONDING. 

After  having  obtained  credit  and  accommodation  at  the 

Inn  and  boarding  house,  unlawfully,  wilfully,  and 

fraudulently  did  abscond  and  surreptitiously  remove  his 
baggage  therefrom,  without  paying  for  his  food  and  accom- 
modation. 

DIGGING  ON   LAND  OF  ANOTHER,  see  TRESPASS. 
DISORDERLY  CONDUCT,  see  DISTURBANCE  OF  THE  PEACE. 


CHAPTER  XVII. 


DISTURBAXCK  OK  THK  PEACE. 


The  principal  offenses  against  the  public  peace  are  dis- 
turbances of  public  meetings/  riots,-  routs,^  unlawful 
assemblies,*  disturbing  the  peace  in  the  night  time,*  exhib- 
iting deadly  weapons  in  a  rude,  angr}^  or  threatening  man- 
ner,® inciting  riot,"  and  using  vulgar  language  in  the  pres- 
ence of  children.*  These  are  all  misdemeanors.  But 
disturbing  the  peace  by  resisting  process  after  a  county  has 
been  declared  in  a  state  of  insurrection,^  or  by  engaging  in 
or  promoting  a  prize  fight^"  is  a  felony. 

FORM — DISTURBING    PEACE    OF    NEIGHBORHOOD. 

Wilfully   and   maliciously   did   disturb   the   peace   of  the 

neighborhood  of in  the  town  of ,  said  county 

of  ,  by  loud    and    unusual    noise,  tumultuous,  and 

offensive  conduct,  and  by  threatening,  quarreling,  and  chal- 
lenging to  fight  and  fighting. 

VULGAR    LANGUAGE    IN    THE    PRESENCE    OF    CHILDREN. 

The  statute  enumerates  several  different  acts,  some  of 
which  are  declared  to  be  misdemeanors  if  done  in  unin- 
corporated towns,  and  the  rest  of  which  are  made  a  misde- 
meanor if  done  anywhere.  Each  of  the  acts  made  a  mis- 
demeanor in  case  it  is  done  within  an  incorporated  town 

1  Penal  Code  403. 

2  Penal  Code  404. 
•■*  Penal  Code  406. 
*  Penal  Code  407 
5  Penal  Code  415. 
e  Penal  Code  417. 
T  Penal  Code  420. 
8  Penal  Code  415. 
!>  Penal  Code  411. 

i«  Penal  Code  412. 


122  CRIMINAL  LAW  AND  PROCEDURK. 

is  specifically  declared  to  be  a  misdemeanor  if  done  in  such 
town;  and  it  is  not  necessary  to  specify  Jie  language  used 
if  it  is  alleged  to  be  profane  and  indecent." 

PORM — VULGAR   LANGUAGE   WITHIN   THE   PRESENCE  OF   CHIL- 
DREN. 

Wilfully  and  maliciously  did  use  vulgar  and  indecent  lan- 
guage within  the  hearing  of  children,  in  a  loud  and  boist- 
rous  manner.'^ 

FORM — DISTURBING    PEACE    OF    PERSONS. 

At  and  in  an  incorporated  town,  to  wit,  the  town  of 
,  in  said  county,  wilfully  and  maliciously  did  dis- 
turb the  peace  and  quiet  of  C  D  and  others  by  threatening 
and  challenging  to  fight,  by  firing  shots  from  a  pistol,  and 
by  using  vulgar  and  profane  language  in  the  presence  and 
hearing  of  women  and  children,  in  a  loud  and  bpistrous 
manner.  I 

FORM — EXHIBITING  DEADLY    WEAPON.  I 

In  the  presence  of  C  D  and  others,  did  wilfully  and  not 
in  necessary  self-defense,  draw  and  exhibit  a  certain  deadly 
weapon,  to  wit,  a  dirk  knife  [or  loaded  pistol,  as  the  case 
may  be]  in  a  rude,  angry  and  threatening  manner, 

FORM — USING    DEADLY    WEAPON. 

In  a  fight  and  quarrel  between  the  said  A  B  and  one 
C  D  wilfully,  unlawfully,  and  maliciously  said  A  B  did 
use  a  certain  deadly  weapon,  to  wit,  a  dirk  knife  [or  loaded 
pistol,  as  the  case  may  be]. 

FORM — RIOT. 

That  the  said  A  B,  together  with  divers  other  persons  to 

the  number  of  ,  or  more,  wilfully,  unlawfully,  and 

riotously  did  assemble  and  gather  together  and  by  loud 
and  unusual  noise  and  tumultous  and  oflfensive  conduct  did 
disturb  the  public  peace. 

11  Ex  parte  Foley,  62  Cal.  508. 

12  Ex  parte  Foley,  62  Cal.  508. 


CHAPTER  XVIII. 


BLECTION  I^AW,  CRIIVIBS  AOAINST. 


The  statute  includes  all  persons  who  wilfully  cause  or 
procure  or  allow  false  registrations.^  Fraud  in  voting  is 
a  conclusion  of  law  to  be  drawn  from  the  facts,  which  must 
be  alleged,  showing  disqualification  of  the  voter  by  alleg-- 
ing  the  facts.  An  allegation  of  fraud  in  general  terms  and 
the  allegation  that  the  defendant  was  not  entitled  to  vote 
are  merely  conclusions  of  law,  and  present  no  issuable 
facts.  The  material  facts  necesssary  to  be  charged  to  show 
a  disqualification  to  vote  are  those  facts  prescribed  by  the 
constitution  and  the  code  as  constituting  the  qualifications ' 
and  creating  the  disabilities  of  electors.^  Under  an  indict- 
ment for  refusing  to  swear  a  voter  whose  vote  has  been 
challenged,  it  is  not  necessary  to  allege  that  such  voter  was . 
registered  on  the  precinct  register.^  Evidence  of  hand- 
writing alone  is  insufficient  to  justify  a  verdict  of  guilty 
under  the  charge  of  altering  election  returns.* 

PENALTY. 

[Section  numbers  below  refer  to  Purity  Act,  statutps  1893,  p.  12.] 
Fraudulent  registration  or  assisting  or  allowing,  impris- 
onment in  state  prison  from  one  to  three  years  [Sees.  21, 
22].  Fraudulent  voting  [Sec.  23],  changing  ballots  or 
returns  by  officers  [Sec.  26],  forging  or  counterfeiting 
returns  [Sec.  27],  imprisonment  in  state  prison  from  two 
to  seven  years.  Attempt  to  fraudulently  vote,  imprison- 
ment in  state  prison  from  one  to  two  years  [Sec.  24].  Brib- 
ery   of    members    of    caucus,  convention    committee,  etc., 

1  People  V.  Sternberg,  111  Cal.  3. 

2  People  V.  Neil,  91  Cal.  465. 

3  People  V.  Burns,  75  Cal.  627. 

*  People  V.  Buckley,   116   Cal.   146. 


124  CEIMINAL  LAW  AND  PROCEDURE. 

imprisonment  in  state  prison)  from  one  to  seven  years  [Sec. 
25].  Altering  returns  by  other  than  officer,  imprisonment 
in  state  prison  from  one  to  five  years  [Sec.  27].  Aiding  or 
abetting  certain  offenses,  imprisonment  in  state  prison  not 
exceeding  two  years  [Sec.  28].  Refusal  to  perform  duty, 
fine  not  exceeding  one  thousand  dollars  o"  imprisonment  in 
state  prison  not  exceeding  five  years  or  both  [Sec.  29].  Fil- 
ing false  statement  or  certificate,  imprisonment  in  state 
prison  from  one  to  seven  years  [Sees.  30,  31].  Officer 
marking  ballots  for  identification,  fine  from  fifty  to  five 
hundred  dollars  or  imprisonment  in  county  jail  from  thirty 
days  to  six  months,  or  both  [Sec.  42]. 

FORM — FRAUDULENT    REGISTRATION. 
[Pujity  Act,  Sec.  22.  | 

That  the  said  A  B  at  the  time  and  place  aforesaid,  hav- 
ing resided  in  the  state  of  California,  less  than  one  year  to 
wit,  about  two  months  [or  having  resided  in  the  county  of 

less  than  ninety  days,  to  wit,  about  thirty  days,  as 

the  case  may  be]  well  knowing  that  he  had  not  been  a  resi- 
dent of  the  state  of  California  for  the  period  of  one  year 

[or  of  the  county  of for  the  period  of  ninety  days, 

as  the  case  may  be],  and  that  he  was  not  a  qualified  voter 
and  not  entitled  to  such  registration,  did  wilfully,  fraud- 
ulently, and  feloniously  cause,  procure,  and  allow  himself 
to  be  registered  in  the  great  register  of  said  county  of 
" ,  state  of  California. 

FORM — VOTING    TWICE. 

[Purity  Act,  Sec.  24.1 

That  on  the  —  day  of  November,  190 — ,  there  was  reg- 
ularly proclaimed,  called,  and  held  a  general  election 
throughout  the  state  of  California  for  the  election  of  state 
and  county  officers,  that  at  said  election  said  A  B  voted  by 

ballot  at  precinct,  then  and  there  a  precinct  duly 

created  and  formed  in  said  county,  and  thereafter  on  th? 

same  day  at  the  same  election,  at  precinct  in  said 

county,  then  and  there  a  precinct  duly  created  and  formed 

and  not  a  part  of  nor  identical  with  said  precinct, 

unlawfully,  wilfully,  fraudulently,  and  feloniously  voted  a 


ELECTIONS.  125 

second  time  by  ballot,  then  and  there  and  thereby  fraud- 
ulently and  feloniously  voting  more  than  once  at  the  same 
election.    , 

FORM FRAUDULENT  VOTING. 

[Purity  Act,  Sec.  24.] 

That  on  the  —  day  of  November,  190 — ,  there  was  reg- 
ularly proclaimed,  called,  and  held  a  general  election 
throughout  the  state  of  California,  for  the  election  of  state 
and  county  officers,  that  at  said  election  said  A  B  at  the 
voting  precinct  of  in  said  county,  which  said  pre- 
cinct was  then  and  there  duly  created  and  formed,  did 
unlawfully,  fraudulently,  and  feloniously  vote  by  ballot; 
that  said  A  B  was  not  then  registered  on  the  great  register 
of  said  county,  and  had  not  resided  in  the  state  of  Califor- 
nia, for  a  period  of  one  year  prior  thereto. 

FORM — ALTERING   ELECTION    RETURNS. 
[Penal  Code,  Sec.  51;   Purity  Act,  Sec.  26.] 

That  on  the  —  day  of ,  190 — ,  there  was  held,  pur- 
suant to  the  laws  of  the  state  of  California  a  general  elec- 
tion   throughout   the    state    aforesaid,  and    in    the    several 

counties  thereof,  and  in  and  for  the  county  of  ,  for 

the  state,  legislative,  county,  and  township  officers,  and  that 
at  said  general  election  among  other  candidates  for  pub- 
lic offices  to  be  elected,  balloted,  and  voted  for  by  the  duly 
qualified  voters  of  said  state,  for  and  in  said  county  and 

state  aforesaid  were  candidates  for  for  said  county 

[or  state,  as  the  case  may  be],  and  among  other  election 
precincts  of  said  county  of  was  the  election  pre- 
cinct of  ,  which  said  election  precinct  was  duly  and 

legally  formed  and  organized,  *  *  *  and  the  said  A  B 
and  C  D  were  and  each  of  them  was  the  duly  appointed, 
qualified,  and  acting  officers  and  members  of  the  board  of 

election  of  said  election  precinct,  to  wit :  Said  A  B 

was  an  inspector  of  said  election  precinct,  and  said  C  D  was 
a  clerk  of  said  election  precinct.  *  *  and  the  duly 
qualified   voters   of   said   precinct   voted    for   the   duly   and 

legally  nominated  candidates  for  said  office  of .  to 

wit,    [here    insert   names   of    candidates     for    said    office] 


126  CRIMINAL  LAW  AND  PROCEDURE. 

resj>cctively ;  that  after  said  election  in  said  precinct  was 
holden.  and  after  the  polls  thereat  were  closed,  the  votes 
cast  at  said  election  in  said  precinct  counted,  and  the  tally 
lists  of  said  counts  were  made  in  writing-  and  it  thereupon 
became  and  was  the  legal  duty  of  said  defendants  and  each 
and  all  of  the  members  of  said  board  of  election  to  sign, 
certify,  and  attest,  as  required  by  law,  true  and  correct 
tally  lists,  and  attach  to  said  tally  lists,  lists  containing  the 
names  of  candidates  voted  for  and  for  what  ofifice,  and  the 
number  of  votes  given  for  each  candidate  at  said  election  in 

said  precinct,  for  delivery  to  the  county  clerk  of 

said  county  of  state  aforesaid ;  that  in  violation  of 

their  sworn  duty  as  such  officers  of  said  election, pre- 
cinct, the  said  A  B  and  C  D,  and  each  of  them  at  the  county 
of aforesaid  in  the  state  aforesaid,  on  or  about  the 

—  day  of ,190 — ,  and  whilst  acting  as  such  officers 

of  election,  and  upon  and  as  members  of  the  said  board  of 
election,  as  aforesaid,  did  and  each  of  them  did,  in  his 
official  capacity  aforesaid,  wilfully,  knowingly,  fraudulently, 
and  feloniously  act  in  contravention  to  and  in  violation  of 
the  provisions  of  the  laws  of  said  state  of  California,  relat- 
ing to  elections,  in  that  they  did  wilfully,  knowingly,  fraud- 
ulently, and  feloniously  alter  the  official  returns  in  said 
election  precinct  and  return  and  cause  to  be  returned  and 
delivered  to  said  county  clerk  of  said  county  aforesaid,  in 
the  state  aforesaid,  as  true  and  official  returns  of  said  elec- 
tion in  said  precinct,  certain  false  and  fraudulent  altered 
tally  lists,  and  lists  attached  to  said  tally  lists,  containing 
the  names  of  candidates  voted  for  at  said  election,  and  for 
what  office,  with  the  number  of  votes  given  for  each  can- 
didate falsely  stated,  and  fraudulently  altered  in  this,  to 
wit:  That  said  defendants  and  each  of  them  did  return 
and  cause  to  be  returned  and  delivered  to  said  county  clerk 
aforesaid,  as  a  true  return  of  said  election  in  said  precinct 
in  writing  that  said  J  M  D  did  receive  in  said  election  pre- 
cinct    votes  as  a  candidate  for  said  office  of  , 

and  that  said  J  M  H  did  receive  in  said  election  precinct 

votes  as  a  candidate  for  said  office  of  ;  whereas 

in  truth  and  in  fact  the  said  J  IVL  D  received  in  said 


ELECTIONS.  1.27 

precinct   votes    for   said   office   of   ,   and   were 

counted  for  him,  said  J  M  D,  for  said  office,  by  said  board 
of  election,  after  the  closing  of  the  polls  of  said  general 
election,  as  they  the  said  A  B  and  C  D  then  and  there  well 
knew ;  whereas  in  truth  and  in  fact  said  J  M  H  received 

in   said  precinct  at   said  election  only  Votes 

for  said  office  of  ,  as  they,  the  said  A  B  and  C  D, 

then  and  there  well  knew ;  whereby  the  said  A  B  and  said 
C  D  and  each  of  them  did  wilfully,  feloniously,  and  fraud- 
ulently alter  the  said  election  returns  of  said pre- 
cinct.^ 

FORM^CHANGING   BALLOT. 

[Penal  Code,  Sec.  48;   Purity  Act,  Sec.  26.]   • 

[Proceed  as  in  preceding  form  to  three  asterisks,  and 
continue  as  follows:] 

And  the  duly  qualified  voters  of  said  precinct  voted  for 
the  duly  and  legally  nominated  candidates  for  said  office 

of  ,  to  wit :   [here  insert  names  of  candidates  voted 

for]  That  after  the  votes  had  been  polled  in  said  election 
precinct,  and  while  the  same  were  being  counted  and  can- 
vassed by  the  regular  election  officers  of  said  precinct,  and 
before  the  said  count  and  canvassing  had  been  completed, 

the  said  A  B  on  or  about  the  —  day  of ,  190 — ,  at  the 

county  of  ,  state  of  California,  did  wilfully,  unlaw- 
fully, and  feloniously  change  a  certain  ballot  which  had 
been  legally  voted  in  said  precinct,  after  it  had  been  depos- 
ited in  the  ballot  box  in  said  precinct,  and  before  the  same 
had  been  counted  by  the  said  election  officers  as num- 
ber of  ballots  lawfully  voted  in  said  precinct,  and  which 
said  ballot  had  been  legally  voted  by  J  J  M,  for  said  office 

of    ,  by    then    and    there    wilfully,  unlawfully,  and 

feloniously  stamping  an  impression  of  a  cross  with  a  stamp 
similar  to  those  regularly  used  by  electors  to  designate 
their  votes  upon  blank  ballots  furnished  for  that  purpose 

opposite  to  the  name  of  R  W  for  the  said  office  of 

upon  said  ballot. 

1  People  V    Buckley,  116  Cal.   146;    People  v.  Egan,  116 
Cal.  287. 


128  CRIMINAL  LAW  AND  PROCEDURE. 

FORM — NEGLECT   OF   DUTY    BY    OFFICERS. 
[Section  29.  Purity  Act.] 

[Proceed  as  in  preceding  form  but  one,  to  two  asterisks, 
and  then  as  follows:] 

That  after  said  election  in  said  precinct  was  holden,  and 
after  the  polls  thereat  were  closed,  the  votes  cast  at  said 
election  were  counted  and  tally  lists  of  such  counts  were 
made  in  writing,  and  thereupon  it  became  and  was  the 
duty  of  the  defendant,  and  all  members  of  said  board  of 
election,  to  sign,  certify,  and  attest,  as  required  by  law, 
true  and  correcttally  lists  and  attach  to  said  tally  lists  lists  con- 
taining the  names  of  candidates  voted  for,  and  for  what 
office,  and  the  number  of  votes  cast  for  each  candidate  at 
said  election,  in  said  precinct,  for  delivery  to  the  county 

clerk  of  said  county  of ,  state  of  California,  that  in 

violation  of  his  sworn  duty  as  such  officer,  to  wit,  inspector 
of  said  election  in  said  precinct  aforesaid,  the  said  defend- 
ant, on  or  about  the  —  day  of ,  190 — ,  and  while  act- 
ing as  such  officer  of  said  election,  and  upon  and  as  a  mem- 
ber of  said  board  of  election  in  said  precinct  aforesaid,  and 
in  his  official  capacity,  as  such  election  officer  as  aforesaid, 
wilfully,  knowingly,  and  fraudulently,  did  neglect  and 
refuse  to  perform  his  duty,  in  contravention  and  violation 
of  the  provisions  of  the  laws  of  said  state  of  California, 
relating,  to  elections,  in  that  he  did  wilfully,  knowingly, 
and  fraudulently,  refuse  and  neglect  to  sign  and  certify  to 
the  tally  lists  of  said  election  in  said  precinct  aforesaid. 

FORM — INTERFERING    WITH    ELECTION    OFFICERb. 

[Purity  Act,  sec.  23.] 

That  on   the  — day  of  .    190 — ,   at   the   county   of 

,  state  of  California,  there  was  regularly   held  an 

election  for  state,  legislative,  and  county  officers;  that 
among  the  places  where  votes  were  lawfully  cast  in  said 

election  in  said  county,  was  the  polling  place  for  the 

precinct  of  said  county,  that  after  said  election  had  been 
had  in  said  precinct  and  while  the  votes  were  being  counted 
and  canvassed  there,  said  A  B  wilfully,  unlawfully,  and 
feloniously  interfered   with  the  regular  election  officer  of 


ELECTIONS.  129 

said  precinct,  then  and  there  conducting  the  canvassing  of 
the  lawful  votes  cast  in  said  precinct,  by  then  and  there  wil- 
fully, and  unlawfully  acting  as  a  clerk  in  tallying  the  said 
votes  cast  in  said  precinct  [or  as  an  inspector,  as  the  case 
may  be],  and  then  and  there  calling  off  and  pretending  to 
call  off  to  the  acting  clerk  keeping  tallies  of  the  votes  cast 
in  said  precinct,  and  to  be  counted  by  them  as  votes  actually 
cast  in  said  precinct,  the  names  of  candidates  regularly 
voted  for  to  fill  official  positions  by  the  qualified  voters  of 
said  precinct,  from  the  ballots  regularly  cast  in  said  pre- 
cinct, said  defendant  not  then  and  there  being  an  officer 
or  clerk  of  the  election  board  of  said  precinct,  either 
appointed  or  qualified  as  provided  by  law,  and  then  and 
there  wilfully  prevented  the  canvass  of  said  vote  in  said 
precinct  from  being  fairly  had  and  lawfully  conducted. 

FORM — ELECTION    OFFICERS'     NEGLECT    OF    DUTY. 
[Purity  Act,  Section  29.] 

That  on  the  —  day  of  ,   190 — ,  at  said  county  of 

state  of  California,  there  was  regularly  held  an 


election  for  state,  legislative,  and  county  officers ;  that 
among  other  places  where  votes  were  lawfully  cast  was  the 

polling  place of  — ■ precinct  of  said  county ;  that 

at  said  election  A  B  was  a  regularly  appointed,  qualified 

and  acting  inspector  of  the  election  board  of  said 

precinct  of  said  county,  and  while  being  such  inspector  did 
wilfully,  unlawfully,  and  feloniously  neglect  to  perform  the 
duties  of  such  inspector  as  required  by  law,  and  did  then 
and  there  wilfully,  unlawfully,  and  feloniously  permit  one 
C  D  to  act  as  an  inspector  of  voters  in  said  precinct,  he.  the 
said  C  D,  not  being  then  and  there  a  member  of  said  elec- 
tion board  of  said  precinct,  and  not  qualified  to  act  as  such 
inspector,  as  he,  the  said  A  B,  then  and  there  well  knew. 

FORM ELECTION  OFFICER,   WRONGFULLY   COUNTING 

VOTES. 
[Penal  Code,  Sec.  51;  Purity  Act,  Sec.  27.] 

That  on  the  —  day  of ,  190 — ,  at  the  said  county  of 

state  of  California,  there  was   regularly  held  an 


election    for    state,  legislative,  and    county    officers ;    that 


CRIMES--9 


180  CBIMiKaL  Law  AMD  PROCEDURE. 

•TaniDng:  other  places  where  said  election  was  held  on  said 
day,  and  where  votes  were  authorized  to  be  cast,  was  the 

polling  place  of  ,   in   the  precinct  of  said 

■county ;  that  at  and  during  said  election  and  at  all  times 
hereinafter  mentioned,  said  A  B  was  a  regularly  appointed, 
•qualifiedy  a!t\d  acting  inspector  of  said  election  board  of  said 
■ — ='^=—  precinct ;  that  among  others  who  were  voted  for  by 
tVie  electors  of  said  county  and  in  said  election  precinct  at 

said  election  were  candidates  for [naming  the  office] 

of  said  county;  that  at  said  election  among  others 
one  C  D  and  one  E  F  were  candidates  for  said  office  of 

;  that  said  A  B,  while  acting  as  inspector  of  said 

precinct  of  said  county,  and  while  canvassing  the  lawful 
votes  of  said  precinct,  wilfully,  unlawfully  and  feloniously, 
and  with  the  intention  of  defrauding  said  E  F  of  the  legal 
votes  cast  for  him  in  said  precinct,  did  read  and  call  out  to 
the  tally  clerk  then  and  there  engaged  in  tallying  the  votes 
in  said  precinct,  the  name  of  C  D,  as  having  received  a 

vote  for  said  office  of  upon  a  ticket,  which  said 

vote  had  been  counted  for  said  E  F,  and  did  then  and 
there  wilfully,  knowingly  and  feloniously  add  said  vote  to 
the  votes  cast  in  said  precinct  for  said  C  D  for  said  office 

of  aforesaid,  and  did  subtract  said  vote  from  the 

votes  actually  cast  in  said  precinct  for  said  E  F  for  said 
office  of . 

FORM — UNLAWFULLY  ACTING  AS  AN   ELECTION  OFFICER. 
[Penal  Code,  sec.  61.] 

At  a  general  election  held  throughout  said  state  of  Cali- 
fornia for  county  and  state  officers,  without  having  been 
appointed  by  the  board  of  supervisors  of  said  county,  or  the 
electors  of  the  election  precinct  hereinafter  named,  or  in 
any  manner  being  appointed,  or  without  being  sworn 
or  qualified  in  any  manner,  did  on  or  about  the  said  — 
day  of ,  19 — ,  at  said  county  and  state,  wilfully,  unlaw- 
fully and  feloniously  act  as  a  clerk  of  election  in  the 

election  precinct  of  said  county. 


CHAPTER  XIX. 


EMBBZZLEMKNT. 

[Penal  Code,  sees.  503-514.] 


DEFINED. 

Embezzlement  is  the  fraudulent  appropriation  of  prop- 
erty by  a  person  to  whom  it  has  been  intrusted.^  The 
essential  element  of  the  oflfense  is  the  fraudulent  conversion 
or  misapprojJriation  by  the  defendant  of  property  received 
by  him  in  a  fiduciary  capacity.^  It  is  a  statutory  "offense 
unknown  to  the  common  law  and  may  cover  a  case  in  which 
the  property  fraudulently  converted  had  not  been  in  the 
possession  of  the  prosecutor.^  As  has  been  shown  that 
embezzlement  is  distinguished  from  larceny  in  this,  that 
in  larceny  there  must  be  a  trespass  or  felonious  taking  of 
property  with  intent  to  steal,  while  in  embezzlement  the 
possession  is  lawful,  but  the  crime  consists  in  the  felonious 
misappropriation  or  conversion. 

PROPERTY    SUBJECT    OF    EMBEZZLEMENT. 

Property  here  means  the  same  as  it  does  under  an  indict- 
ment for  larceny,  and  includes  all  kinds  of  personal  prop- 
erty. Shares  of  stock  constitute  property  capable  of  embez- 
zlement.* 

WHAT  AMOUNTS  TO  A   CONVERSION. 

There  must  be  some  dealing  with  the  property  inconsist- 
ent with  the  relation  existing  between  the  parties  when  the 
property  was  placed  in  the  possession  of  the  defendant ;  in 
other  words,  there  must  be  a  proof  of  a  fraudulent  conver- 

1  Penal  Code  503;   People  v.  De  Lay,  80  Cal.  5J. 

2  People  V.  Wyman,  102  Cal.  552;   People  v.  Gordon,  133 
Cal.  328. 

3  People  V.  Gallagher,  100  Cal.  466. 

4  People  V.  Williams,  60  Cal.  1. 


182  CRIMINAL  LAW  *NI)  PROCEDURK. 

sion,"  such  as  the  substitution  6i  worthless  securities  in 
place  of  good  ones;"  or  where  an  attorney  collects  money 
for  his  client  and  appropriates  it  without  informing  the 
client  of  its  collection  :^  or  where  the  county  assessor  col- 
lects moneys  and  does  not  return  them  to  the  office.*  But 
embezzlement  by  a  guardian  is  not  shown  by  a  failure  to 
pay  bills  ordered  by  the  court  to  be  paid,  even  though  it 
appears  that  he  drew  the  money  of  his  ward  from  the 
bank."  The  conversion  necessary  for  embezzlement  is  the 
taking  of  the  property  of  another  for  the  defendant's  own 
use,  knowing  that  such  taking  is  without  right  and  without 
the  consent  of  the  owner.  A  mere  failure  to  comply  with 
pecuniary  obligations  does  not  amount  to  an  embezzle- 
ment." And  where  the  property  is  taken  under  a  claim  of 
title  made  in  good  faith  by  the  defendant,  it  is  not  embez- 
zlement." But  an  offer  to  return  the  stolen  property  is 
not  a  defense,  nor  is  the  giving  of  an  indemnity  :^^  nor  is 
the  actual  restoration  of  the  property  any  defense."  The 
neglect  of  a  secretary  of  a  corporation  to  examine  the  books 
of  the  corporation  kept  by  another  person,  is  not  sufficient 
to  sustain  a  charge  of  embezzlement.  The  presumption  of 
innocence  overcomes  all  other  presumptions,  and  the 
defendant  cannot  thus  be  charged  with  knowledge  of  the 
condition  of  the  books.'* 

DEMAND. 

In  order  to  charge  a  person  with  embezzlement  of 
moneys  which  have  come. into  his  possession  lawfully,  a 
demand  for  the  money  must  have  been  made,  or  the  time 
within  which  it  is  to  be  applied  for  the  uses  intended  must 
have  expired."     But   no   demand   is   necessary   upon   one 

»  People  V.  Wyman,  102  Cal.  552. 

8  People  V.  Leonard,  106  Cal.  302. 

7. People  V.  Treadwell,  69  Cal.  229. 

«  People  V.  Cobler,  108  Cal.  538. 

0  People  V.  Page,  116  Cal.  386. 
">  People  V.  O'Brien,  106  Cal.  104. 
"  People  V.  Lapique,  120  Cal.  25. 
-•2  People  V.  De  Lay,  80  Cal.  52;   Penal  Code,  513. 
13  People  V.  Royce,   106   Cal.   173. 
»*  People  V.  Blackman,  127  Cal.  248. 
»B  People  V.  Wyman,  102  Cal.  552. 


EMBEZZLEMENT.  133 

collecting  money  without  authority.^'  And  the  refusal  by 
an  agent  to  pay  on  demand  is  not  evidence  of  conversion 
unless  the  person  making  the  demand,  had  authority  to 
do  so." 

EMBEZZLEMENT    BY    AGENTS. 

Where  an  agent  is  authorized  to  sell,  he  is  guilty  of 
embezzlement  where  he  makes  a  sale  with  the  fraudulent 
intent  secretly  to  convert  the  proceeds  therof.^*  In  order 
to  charge  an  agent  with  embezzlement,  it  is  requisite  to 
show  (i)  that  he  was  an  agent;  (2)  that  he  received  the 
money  belonging  to  his  principal,  and  (3)  that  he  con- 
verted it  to  his  own  use  with  intent  to  steal  the  same.*' 
The  essential  elements  of  the  crime  are  the  fiduciary  rela- 
tion which  arises  where  one  intrusts  property  to  another, 
and  the  fraudulent  appropriation  thereof  by  the  latter.^" 

The  agent  is  estopped  to  deny  the  receipt  of  the  money 
in  the  course  of  his  agency,  where  the  money  has  been 
ostensibly  received  as  such.^^  The  mere  fact  that  an  admin- 
istrator received  more  money  that  he  accounted  for,  in  the 
absence  of  inculpatory  facts,  does  not  amount  to  embez- 
zlement.-- 

BY    A    PUBLIC    OFFICER. 

The  mere  omission  of  a  public  officer  to  pay  over  money 
received  by  him  is  not  sufficient  to  convict  f^  as  he  might 
retain  it  under  a  claim  of  right.^*     And  there  must  be  a 

16  People  V.  Van  Ewan,  111  Cal.  144. 

17  People  V.  Tomllnson,  66  Cal.  344. 

18  People  V.  Doane,  77  Cal.  560. 

If  Ex  parte  Hedley,  31  Cal.  109.  The  cases  of  Ex  parte 
Hedley,  31  Cal.  109,  and  People  v.  Bailey,  23 
Cal.  570,  were  under  a  statute  which  provided 
that  the  agent  must  receive  the  property  from  his 
employer,  but  under  the  present  statute,  it  is  immaterial 
whether  it  be  received  in  the  course  of  his  employment 
or  not,  consequently,  it  is  not  necesssary  now  that  the 
money  or  property  should  be  received  in  the  course  of 
the  agent's  employment.  , 

^•"  People  V.  Gordon,  133  Cal.  328. 

21  People  v.  Treadwell,  69  Cal.  226;  People  v.  Royce,  106 
Cal.  187;  People  v.  Leonard,  106  Cal.  310;  People  v. 
Gallagher,   100  Cal.  446;   Ex  parte  Hedley,  31  Cal.  109. 

22  jr-eople  v.  Gale,   77   Cal.   120. 

23  People  v.  Westlake,  124  Cal.  452. 

24  People  V.  Carrillo,  54  Cal.  63;  People  v.  Hamilton,  103 
Cal.   489. 


134  CRIMINAL  LAW  AND  PROCEDURE. 

demand  shown  before  the  officer  can  be  charged  with  guilt 
unless  the  evidence  otherwise  shows  that  the  money  was 
appropriated  with  felonious  intent.^'*  But  where  an 
assessor  makes  no  return  to  the  office  of  the  moneys  col- 
lected, it  is  proof  of  conversion."  And  where  the  evidence 
shows  that  the  officer  paid  out  more  moneys  than  he 
received,  a  verdict  of  conviction  will  be  reversed. ^^ 

INTENT. 

The  fraudulent  appropriation  and  conversion  must  be 
shown  to  establish  the  intent.^®  The  felonious  intent  is  a 
necessary  element,  and  where  there  is  a  dispute  as  to  the 
account,  no  intent  to  convert  is  shown." 

VENUE. 

The  venue  must  be  laid  where  the  conversion  was  had 
unless  the  property  was  received  with  intent  to  convert 
it.^°  The  crime  is  complete,  however,  the  moment  the 
property  is  taken  with  intent  wrongfully  to  appropriate  it, 
regardless  of  its  subsequent  removal  and  sale  in  another 
county.'^  But  the  venue  may  be  laid  in  any  county  where 
the  offense  was  committed,  or  where  the  property  was 
taken.^^  Where  the  goods  were  taken  by  an  agent  in  one 
county  and  sold  in  another,  and  the  proceeds  there  appro- 
priated, the  venue  is  in  the  county  of  the  sale  and  appro- 
priation." The  crime  may  be  punishable  in  this  state,  if 
consummated  here,  although  it  was  commenced  elsewhere.'* 

EVIDENCE. 

Where  the  embezzlement  is  by  an  acting  deputy  it  is 
not  necessary  to  show  a  proper  qualification  of  the  officer 
because  the  law  presumes  that  those  acting  have  authority.'" 

28  People  V.  Royce,  106  Cal.  173;   People  v.  Page    116  Cal. 

386. 
28  People  V.  Cobler,  108  Cal.  538. 
"  People  V.  Westlake,  124  Cal.  452. 
28  People  V.  De  Lay,  80  Cal.  52. 
2»  People  V.  O'Brien,   106   Cal.   104. 
3"  People  V.  Murphy,  51  Cal.  376;  Jeople  v.  Scott,  74  Cal. 

96;  People  v.  Gordon,  133  Cal.  331. 
8J  People  V.  Fly,  107  Cal.  497. 

82  People  V.  Salorse,  62  Cal.  139. 

83  Ex  parte  Palmer.  86  Cal.  631. 
3*  Ex  parte  Hedley,  31  Cal.  108. 
86  People  V.  Cobler,   108   Cal.   538. 


EMBEZZLEMENT.  135 

Proof  of  a  de  facto  corporation  is  sufficient,  and  oral  testi- 
mony may  be  introduced  to  show  who  its  officers  are.'* 
The  books  of  the  corporation  kept  by  a  bookkeeper,  since 
dead,  are  not  admissible  against  a  secretary  of  the  corpora- 
tion, accused  of  embezzlement  without  proof  that  he  knew 
their  contents  or  was  responsible  for  their  condition. ^^  In 
order  to  explain  the  character  of  the  transaction  out  of 
which  the  alleged  embezzlement  grew,  evidence  of  similar 
contracts  made  by  the  defendant  are  admissible.^*  Proof 
of  a  part  of  the  property  alleged  in  the  indictment  to  have 
been  stolen  will  sustain  a  conviction.^®  Evidence  that  the 
defendant  had  collected  other  moneys  and  failed  to  account 
therefor  may  be  admitted  for  the  purpose  of  showing  guilty 
knowledge  and  criminal  intent. *''  And  on  a  charge  of 
embezzlement  of  public  funds,  evidence  of  a  payment  of 
moneys  into  the  treasury  by  a  surety  on  the  official  bond  of 
the  accused  may  be  introduced.*^ 

OWNERSHIP. 

Under  a  charge  of  embezzlement  of  the  proceeds  of  a 
note  endorsed  for  collection,  the  ownership  of  the  endorser 
is  sufficient  to  sustain  the  allegation  of  ownership.*^  And 
where  the  secretary  of  a  corporation  is  accused  of  filling  up 
signed  checks  in  his  own  favor ,1  the  checks  are  the  property 
of  the  corporation  and  not  of  the  bank  on  which  they  are 
drawn.*' 

INDICTMENT. 

The  description  of  the  property  in  embezzlement  should 
be  the  same  as  in  larceny."  The  particular  kind  of  money 
embezzled  need  not  be  specified.*^  In  case  of  a  conversion 
by  a  bailee,  the  mode  of  the  conversion,  the  description  of 

36  People  V.  Leonard,  106  Cal.  302. 

"  People  V.  Blackman,   127  Cal.  248. 

ss  People  V.  Doane,   77   Cal.   560. 

•■59  People  V.  Gray,  66  Cal.  271. 

•»o  People  V.  Cobler,  108  Cal.  538;   People  v.  Meyce,  86  Cal. 

393. 
♦1  People  V.  Findley.   132  Cal.  301. 
«  People  V.  Treadwell,  69  Cal.  226. 

43  People  V.  Gallagher,  100  Cal.  466. 

44  People  V.  Cox.  40  Cal.  275. 

45  People  V.  Treadwell,  69  Cal.  226.  ' 


186  CRIMINAL  LAW  AND  PROCEDURE. 

the  property  and  its  value  should  be  distinctly  set  forth.** 
But  the  information  will  be  sufficient  as  to  the  bailee,  if  the 
facts  show  such  a  relation  without  designating  the  agency 
by  any  definite  name.*^  The  facts  being  stated  the  agency 
is  a  question  for  the  jury.** 

PENALTY. 

If  of  public  funds,  imprisonment  in  the  state  prison  from 
one  to  ten  years.  Otherwise,  same  as  larceny  of  same 
amount.  Thus  the  embezzlement  of  a  horse  is  a  felony, 
regardless  of  its  value,  and  is  punishable  as  for  grand  lar- 
ceny.*' 

FORM — EMBEZZLEMENT    BY    CLERK    OR    SERVANT. 

[Penal  Code,  sec.  508.] 

That  the  said  A  B  on  or  about  the  —  day  of ,  190 — , 

at  the  county  aforesaid,  was  clerk  and  servant  to  one  C  D, 
and  being  clerk  and  servant  as  aforesaid,  by  virtue  of  his 
said  employment  as  such  clerk  and  servant,  there  came  into 
his  control  and  care,  for  and  on  account  of  the  said'C  D, 

the  sum  of  dollars,  lawful  money  of  the  United 

States ;  and  the  said  A  B  aforesaid,  so  received  and  took 
into  his  control  and  care,  the  said  money  for  and  on 
account  of  the  said  C  D,  and  afterwards,  to  wit,  on  the 

—  day  of  ,   190 — ,  in  the  county  aforesaid,  wilfully, 

unlawfully,  feloniously  and  fraudulently  did  embezzle,  con- 
vert and  appropriate  the  same  to  his  own  use.''" 

FORM — EMBEZZLEMENT  BY  TRUSTEE. 

[Penal  Code,  sec.  506.] 

That  on  the  —  day  of  ,  190 — ,  in  the  matter  of  the 

estate  and  guardianship  of  C  D,  then  pending  in  the  Supe- 
rior Court  in  and  for  the  county  of ,  state  of , 

said  A  B  by  order  of  said  court  duly  given  and  made,  was 

<«  People  V.  Cohn,   8   Cal.   42;    People   v.   Winkler,   9   Cal. 

236;  People  v.  Peterson.  9  Cal.  315;  People  v.  Johnson. 

71  Cal.  390. 
*T  People  V.  Johnson.  71  Cal.  384. 
♦•  People  V.  Meyce,  86  Cal.  393. 
«  People  V.  Salorse,  62  Cal.  139;   People  v.  Wlckham.  116 

Cal.  384. 
60  People  V.  Treadwell.    69   Cal.    226. 


EMBEZZLEMENT.  137 

appointed  guardian  of  the  estate  of  the  said  C  D,  and 
afterwards  duly  qualified  as  such  guardian ;  and  on  the  — 

day  of  ,   190 — .  being  then  and  there  intrusted  with 

and  having  in  his  control  the  sum  of dollars  in  law- 
ful money  of  the  United  States  as  guardian,  trustee  and 
agent  of  the  said  C  D,  an  insane  person,  for  the  use  and 
benefit  of  the  said  C  D,  then  and  there  the  property  of  and 
belonging  to  the  said  C  D,  did  then  and  there,  to  wit,  at 

the  said  county  of  ,  on  the  —  day  of  ,   190 — , 

wilfully,  unlawfully,  feloniously  and  fraudulently  embezzle, 
convert  and  appropriate  the  same  to  his  own  use.'^ 

FORM BY   AN    OFFICER   OF  A   PRIVATE   ASSOCIATION. 

[Penal  Code,  sec.  504.] 

That  the  said  A  B,  on  or  about  the  —  day  of ,  190 — , 

at  the  county  of ,  was  an  officer,  to  wit,  the  treasurer 

of  ,  an  association  existing  under  and  pursuant  to 

the  laws  of  the  state  of  California,  and  as  such  officer, 
then   and  there  came  and  was  under  his  control  and  in 

his  possession  by  virtue  of  his  trust  as  such  officer, 

dollars  in  lawful  money  of  the  United  States,  and  the  said 
A  B,  while  said  money  was  so  in  his  possession  and-  under 
his  control  by  virtue  of  his  trust  as  such  officer,  then  and 

there,  to  wit,  on  or  about  the  —  day  of ,  190 — ,  at  said 

county  of  ,  did  wilfully,  unlawfully,  feloniously  and 

fraudulently  appropriate  said  money  to  his  own  use,  and 
not  to  a  use  in  the  due  and  lawful  execution  of  his  said 
trust,  the  said  money  then  and  there  being  the  property  of 
said  association.''^ 

FORM EMBEZZLEMENT    BY    A    PUBLIC    OFFICER. 

[Penal  Code,  sec.  504.] 

That  the  said  A  B,  on  or  about  the  —  day  of ,  190 — , 

at  the  county  of  ,  state  of  California,  was  the  duly 

appointed,  qualified  and  acting  secretary,  clerk  and  servant 
of  certain  state  officers  of  said  state  of  California,  to  wit,  of 
the  board  of  state  harbor  commissioners  [otherwise  known 
and  designated  as  the  state  board  of  harbor  commissioners] 

51  People  V.  Page,    116    Cal.    387. 

52  People  V.  Mahlman,  82  Cal.  585. 


138  CRIMINAL  LAW  AND  PROCEDURE. 

then  and  there  duly  appointed,  qualified  and  acting  as  such 
board  aforesaid,  under  and  by  virtue  of  the  laws  of  the 
state  of  California,  and  by  virtue  of,  and  in  the  course  of 
his  said  employment  as  such  secretary,  clerk  and  servant  of 
said  board  of  state  harbor  commissioners  aforesaid,  [other- 
wise known  and  designated  as  the  state  board  of  harbor 
commissioners,  as  aforesaid]  there  came  into  and  was  in 
the  control,  care,  possession  and  custody  of  him,  the  said 

A   B,  certain   public  moneys,  to  wit,   the  sum  of  

dollars,  in  lawful  money  of  the  United  States,  and  then  and 

there  being  of  the  value  of  dollars,  lawful  money 

of  the  United  States,  and  then  and  there  being  the  personal 
property  of  the  state  of  California,  aforesaid,  which  said 
public  moneys  had,  on  said  day  last  aforesaid,  been  paid 
into  the  office  of  said  board,  and  received  by  said  A  B,  for 
and  on  behalf  of  said  board,  as  such  secretary  of  said  board 
as  aforesaid ;  and  after  the  said  public  moneys,  as  afore- 
said, to  wit,  the  sum  of  dollars,  as  aforesaid,  had 

come  into  the  control,  care,  custody  and  possession  of  him, 
the  said  A  B  as  such  secretary,  clerk  and  servant  of  the 
board  of  state  harbor  commissioners,  as  aforesaid,  to  wit,  at 

said  county  of  ,  state  aforesaid,  on  the  —  day  of 

,  190 — ,  he,  the  said  A  B,  to  wit,  at  the  said  county 

aforesaid,  and  on  the  —  day  of ,  190 — ,  last  aforesaid, 

did  then  and  there  fraudulently  and  feloniously,  and  not  in 
the  due  and  lawful  execution  of  his  employment  and  trust 
as  such  secretary,  clerk  and  servant  of  said  board,  while 
he,  the  said  A  B  so  as  aforesaid,  was  the  secretary,  clerk 
and  servant  of  said  board  of  state  harbor  commissioners, 
[otherwise  known  and  designated  as  the  state  board  of  har- 
bor commissioners]  and  while  he,  the  said  A  B  had  said 
public  moneys  aforesaid  in  his  possession  and  under  his 
control  as  such  secretary,  clerk  and  servant,  as  aforesaid, 
convert,  appropriate  and  embezzle  the  said  publ'^  moneys 
to  his  own  use." 

»3  People  V.  Cray,  66  Cal.  271. 


EMBEZZLEMENT.  139 

FORM — EMBEZZLEMENT BAILEE. 

[Penal  Code,  sec.  507.] 

That  said  W  F  G,  on  or  about  the  —  day  of ,  190 — , 

was,  by  one  P  H,  intrusted  as  bailee,  with  certain  personal 
property,  to  wit,  one  gold  ring,  with  diamond  setting,  of 
the  value  of  two  hundred  dollars,  in  gold  coin  of  the  gov- 
ernment of  the  United  States  of  America,  which  said  ring 
was  then  and  there  the  personal  property  of  the  said  P  H, 

and  thereafter,  on  or  about  the  —  day  of  ,  190 — ,  at 

and  in  the  county  and  state  aforesaid,  the  said  W  F  G  did 
wilfully,  unlawfully  and  feloniously  did  embezzle  and 
fraudulently  convert  to  his  own  use  the  said  gold  ring 
with  diamond  setting,  without  the  consent  of  the  said  P  H." 

EMBRACERY,  see   BRIBERY. 

54  People  V.  Gordon,  133  Cal.  328. 


CHAPTER  XX. 


KSCARKS. 

[Penal  Code,  sees.  105-111.] 


The  imprisonment  under  which  a  person  is  held  must  be 
lawful  in  order  to  make  a  departure  therefrom  an  escape. 
Departure  from  a  confinement  not  authorized  by  law  is  not 
an  escape,  neither  can  one  who  assists  in  such  a  departure 
be  guilty  of  assisting  in  an  escape.^  An  injury  to  a  public 
jail  in  attempting  to  escape  may  be  prosecuted  as  such  and 
as  an  attempt  to  escape.^ 

PENALTY. 

An  escape  from  the  state  prison  for  a  term  less  than 
life  is  punishable  by  imprisonment  therein  for  a  term  equal 
to  the  term  which  was  being  served;  and  an  attempt  to 
escape  from  such  an  imprisonment  is  a  felony,  the  impris- 
onment for  which  oflFenses  to  commence  at  the  expiration 
of  the  sentence  being  served.  An  escape  from  any  other 
imprisonment  is  a  misdemeanor. 

FORM — ESCAPE. 

That  on  the  —  day  of ,  190-,  J  $  then  and  there  beirig 

one  of  the  justices  of  the  peace  within  and  for  the  county 
of  M,  legally  authorized  and  duly  qualified  to  discharge 
and  perform  the  duties  of  that  office,  one  J  N  was  then  and 
there  charged  before  said  J  S  by  one  C  H,  upon  the  oath 
of  the  said  C  H,  that  the  said  J  N  had  then  lately  before, 
violently  and  against  her  will,  feloniously  ravished  and 
carnally  known  the  said  C  H ;  and  the  said  J  N  was  then 
and  there  examined  before  the  said  J  S,  justice  of  the  peace 
aforesaid,  touching  the  said  offense  so  to  him  charged  as 

1  People  V.  Ah  Teung,  92  Cal.  421. 

2  People  V.  Sheldon,  68  Cal.  434. 


ESCAPES.  141 

aforesaid;  upon  which  the  said  J  S,  justice  of  the  peace,  as 
aforesaid,  did  then  and  there  make  a  certain  warrant  of 
commitment  under  his  hand  and  seal,  in  due  form  of  law, 

bearing  date   the  said  —  day  of  ,    190 — ,  aforesaid, 

directed  to  the  keeper  of  the  jail  situated  at  C,  in  said 
county,  commanding  the  said  keeper  that  he  should  receive 
into  his  custody  the  said  J  N,  brought  before  him  and 
charged,  upon  the  oath  of  the  said  C  H,  with  the  premises 
above  specified ;  and  the  said  justice  of  the  peace,  by  the  said 
warrant,  did  command  the  said  keeper  of  the  jail  situated  at 
C,  in  the  county  of  M,  to  safely  keep  the  said  J  N  there 
until  he  by  due  course  of  law  should  be  discharged ;  by  vir- 
tue of  which  said  warrant,  afterwards,  to  wit,  on  the  day  and 
year  aforesaid,  the  said  J  N  was  taken  and  conveyed  to  the 
said  jail  at  C  aforesaid,  and  then  and  there  delivered  to  one 
W  S,  the  keeper  of  the  said  jail ;  and  the  said  W  S,  keeper 
of  the  said  jail,  then  and  there  received  the  said  J  N  in  his 
custody  in  the  jail  at  C  aforesaid ;  *  *  that  the  said 
J  N  afterwards,  and  whilst  he  so  remained  in  custody  of  the 
said  W  S,  keeper  of  the  said  jail,  under  and  by  virtue  of 

the  warrant  aforesaid,  to  wit,  on!  the  —  day  of ,  in  the 

year  last  aforesaid,  feloniously,  unlawfully,  wilfully  and 
injuriously  did  break  the  jail  situated  at  C  aforesaid,  by 
then  and  there  cutting  and  sawing  two  iron  bars  of  the  said 
jail,  and  by  then  and  there  breaking,  cutting  and  removing 
a  great  quantity  of  stone,  parcel  of  the  wall  of  the  jail  afore- 
said ;  by  means  whereof  the  said  J  N  did  then  and  there 
escape  and  go  at  large  withersoever  he  would. 

FORM — CONVEYING    INSTRUMENTS    TO    PRISONER. 

Proceed  as  in  preceding  form  to  asterisks,  and  then  as 
follows : 

That  one  J  T,  afterwards,  and  whilst  the  said  J  N  was, 
and  rem.ained  in  the  custody  of  the  said  W  S,  in  the  jail 

of aforesaid,  namely,  on  the  —  day  of ,  in  the 

year  last  aforesaid,  in  the  county  aforesaid,  feloniously  and 
unlawfully  did  convey,  and  cause  to  be  conveyed  into  the 

said  jail  of  -^ ,  two  steel  files,  being  instruments  proper 

to  facilitate  the  escape  of  prisoners ;  and  the  same  files, 


r42  CRIMINAL  LAW  AND  PROCEDURE. 

being  such  instruments  as  aforesaid,  then  and  there  felon- 
iously did  deliver,  and  cause  to  be  delivered,  to  the  said 
J-  N,  without  the  consent  or  privity  of  the  keeper  of  the 

said  jail  of  ,  the  said  J  N  then  and  there  being  a 

prisoner  in  the  said  jail  and  then  and  there  lawfully 
detained  for  the  felony  and  rape  aforesaid,  in  the  said 
warrant  of  commitment  above  mentioned  and  expressed, 
and  that  the  said  files,  being  such  instruments  as  afore- 
said, were  then  and  there  so  conveyed  into  the  said  jail, 
and  delivered  to  the  said  J  N  by  the  said  J  T,  as  aforesaid, 
with  the  felonious  intent  then  and  there  to  aid,  assist,  and 
facilitate  the  said  J  N,  so  being  such  prisoner  and  in  cus- 
tody as  aforesaid,  to  escape  and  attempt  to  escape  from 
and  out  of  the  said  jail.* 

FORM INJURY    PUBLIC    JAIL. 

Unlawfully,   wilfully,   intentionally,   and   feloniously   did 

injure  the  county  jail  of county,  by  digging  a  hole 

in  the  floor  thereof,  and  prying  up,  pulling  down,  and 
breaking  a  certain  door  belonging  to  and  being  a  portion 
of  said  jail,  which  said  jail  is  a  public  jail  for  the  con- 
finement of  prisoners.* 

8  Forms  adapted  from  Archbold. 
«  People  V.  Sheldon,  68  CaL  434. 


CHAPTER  XXI. 


KXTORXION. 

[Penal  Code,  sec.  518.1 


DEFINED. 
Is  the  obtaining  of  property  from  another,  with  his  con- 
sent induced  by  wrongful  use  of  force  or  fear,  or  under 
color  of  official  right.^ 

FEAR, 

The  force  or  fear  must  be  the  operating  or  controlling 
cause  which  produces  the  consent  of  the  owner  to  part  with 
the  property.  If  it  be  only  a  partial  cause  it  is  not  suffi- 
cient. It  must  be  the  whole  cause.^  To  constitute  the 
oflFense  the  fear  must  be  induced  by  a  threat  to  do  an  unlaw- 
ful injury  to  the  person,  or  property  of  an  individual,  or  a 
relative  or  member  of  his  family,  or  to  accuse  him  or  them 
of  a  crime,  or  to  expose  or  impute  to  him  or  them  some 
deformity  or  disgrace,  or  to  expose  any  secret  affecting 
him  or  them.^  It  includes  fear  induced  by  threats  to  accuse 
of  a  crime  against  the  laws  of  the  United  States.* 

ILLEGAL  FEES. 

The  fees  demanded  must  have  been  illegal  and  such  as 
the  officer  had  no  right  to  demand,  and  have  been  taken 
wilfully  and  corruptly. ■'' 

SENDING  THREATENING  LETTERS.® 

The  language  used  must  be  adapted  to  imply  a  threat  to 

1  People  V.  Hoffman,    126   Cal.   366. 

2  People  V.  Williams,  127   Cal.  212. 

3  Penal  Code,  519;   People  v.  Cadman,  57  Cal.  562. 
*  People  V.  Sexton,  132  Cal.  37. 

5  People  ex  rel  Perley,  2  Cal.  564. 
«  Penal  Code  523,  650,  660. 


144  CRIMINAL  LAW  AND  PROCEDURE. 

do  an  unlawful  injury  to  the  person  or  property  of  the 
individual  threatened,  or  to  a  relative  or  member  of  his 
family,  or  to  accuse  him  or  them  of  a  crime,  or  to  expose 
or  impute  to  him  or  them  some  deformity  or  disgrace,  or  to 
expose  some  secret  affecting  him  or  themJ  It  is  not  neces- 
sary that  the  threat  should  be  apparent  from  the  face  of 
the  letter,  nor  that  it  should  be  implied  therefrom,  but  it 
is  sufficient  if  the  language  used  is  adapted  to  imply  such 
a  threat.*  A  variance  which  does  not  alter  the  sense  of 
the  letter  as  expressing  or  implying  the  threat  should  be 
disregarded." 

EVIDENCE. 

Immoral  conduct  existing  between  two  defendants  is  not 
admissible  to  prove  that  they  were  guilty  of  extortion.^" 

INDICTMENT. 

An  indictment  charging  the  crime  of  extortion  must 
allege  all  the  facts  necessary  to  constitute  the  offense.  It 
must  show  by  facts  set  out  that  the  property  was  obained 
with  consent  of  the  owner  by  a  wrongful  use  of  force  or 
fear." 

PENALTY. 

Where  threat  is  made  to  extort  money,  imprisonment  in 
state  prison  not  exceeding  five  years.  Where  threat  is 
made  to  accuse  another  of  crime,  or  to  expose  failings  or 
infirmities  without  intention  to  extort  money,  imprisonment 
in  county  jail  not  exceeding  six  months  or  fine  not  exceed- 
ing five  hundred  dollars  or  both. 

FORM    FOR   THREATENING   LETTER. 

With  intent  feloniously  to  extort  money  and  property 
from  one  C  D,  did  then  and  there  wilfully,  unlawfully,  and 
feloniously  send  to  said  C  D  a  certain  letter  in  writing  the 
wording  of  which  did  express  and  implv  and  was  adapted 

^  People  v.  Choynski,  95  Cal.   640;    People  v.   Tonielli,  81 
Cal.  275. 

8  People  V.  Choynski.  95  Cal.  640. 

»  People  V.  Tonielli.  81  Cal.  275. 
>«  People  V.  Williams,  127  Cal.  212. 
11  People  V.  Hoffman.   126  Gal.  3S6. 


EXTORTION.  145 

to  imply  a  threat  to  impute  to  the  said  C  D  disgrace,  and 
to  expose  the  same,  which  said  letter  and  writing  was  then 
and  there  in  the  words  and  figures  following,  to  wit : 
[Here  set  out  letter  in  full].^^ 

FORM— EXTORTION   GENERALLY. 

Did    wilfully,    unlawfully,    and    feloniously    extort    and 
obtain  from  one  C  D  with  the  consent  of  the  said  C  D 

the  sum  of  dollars,   lawful  money  of  the  United 

States  [or  other  property,  describing  it]  ;  that  said  consent 
of  said  C  D  was  then  and  there  obtained  by  fear  induced 
by  means  of  a  threat  then  and  there  made  by  the  said  A  B 
to  complain  of  and  publicly  accuse  the  said  C  D  of  the 
crime  of  robbery    [or  other  threat,  describing  it]. 

FORM — EXTORTION    BY    OFFICER. 

That  said  A  B  being  then  and  there  the  duly  elected, 

qualified,  and  acting  constable  of  township,  in  said 

county  [or  other  officer,  describing  him]  did  take  and 
receive  from  one  C  D  a  certain  writ  commonly  called  a 
writ  of  attachment,  and  thereupon  unlawfully,  wilfully,  cor- 
ruptly, and  feloniously,  and  under  color  of  official  right 
did  extort  and  obtain  of  and  from  the  said  C  D  the  sum 

of  dollars,  lawful  money  of  the  United  States  as 

and  for  a  fee  due  to  the  said  A  B  as  such  officer  as  afore- 
said for  serving  and  returning  said  writ  as  the  said  A  B 
then  and  there  claimed  and  alleged :  while  in  truth  and  in 
fact,  no  fee  whatever  was  then  due  from  the  said  C  D  to 
the  said  A  B  as  such  officer,  as  aforesaid,  for  such  services, 
and  as  the  said  C  D  then  and  there  well  knew. 

12  People  V.  Tonielli,  81  Cal.  275. 


CRIMES--10 


CHAPTER  XXII. 


FALSE  ENTRY  IN  BOOKS  OF  COR- 
PRORATION. 

[Penal   Code,  sec.   563.] 


DEFINED. 

The  omission,  or  concurrence  in  omitting  by  an  officer 
or  agent  of  a  corporation,  or  joint  stock  association,  with 
intent  to  defraud,  or  the  making,  or  concurrence  in  the 
making  of  any  material  entry  in  any  book  of  accounts,  or 
other  record  or  document  kept  by  such  corporation,  or 
association,  or  the  destruction,  alteration,  mutilation,  or 
falsification  of  any  of  the  books,  papers,  writings,  or  secur- 
ities of  such  corporation  or  association.  It  must  appear 
that  the  entries  or  omissions  were  made  with  intent  to 
defraud,  and  that  they  were  not  made  through  mistake  of 
fact.  In  the  indictment  it  is  necessary  to  set  out  the  acts 
done  or  omitted,  and  allege  that  they  were  done  or 
omitted  with  intent  to  defraud.  It  is  not  required  to  state 
the  facts  showing  how  the  entries  or  omissions  could 
have  resulted  in  defrauding.  That  is  purely  a  matter  of 
evidence.  If  it  is  apparent  from  the  face  of  the  indict- 
ment that  the  entries  are  such  that  under  no  possible  state 
of  circumstances,  they  could  have  resulted  in  fraud,  the 
indictment  would  be  open  to  the  question  that  it  did  not 
show  where  the  entry  or  omission  was  false.  But  where 
the  court  cannot  say  from  an  inspection  of  the  same  that 
the  entries  could  not  have  resulted  in  defrauding  the  indict- 
ment is  sufficient.^ 

PENALTY. 

Imprisonment  in  the  state  prison  not  less  than  three  nor 

'  People  V.  Leonard,   103   Cal.   200;    People   v.   Palmer.   58 
Cal.  615. 


FALSE  ENTRY.  147 

more  than  ten  years,  or  by  imprisonment  in  the  county  jail 
not  exceeding  one  year,  and  a  fine  not  exceeding  five  hun- 
dred dollars,  or  by  both  such  fine  and  imprisonment. 

FORM — FALSE   ENTRY. 

Then    and    there    was    an    officer,  to    wit,  ,    [or 

director  or  agent]  of  C  D,  a  corporation,  and  as  such  officer, 
[or  director  or  agent]  had  under  his  control  and  in  his 
possession  a  certain  record  known  as  [here  give  name  of 
record]  which  said  record  was  then  and  there  the  property 
of  and  kept  by  said  corporation,  and  the  said  A  B,  while 
said  record  was  so  in  his  possession  and  under  his  control, 
by  virtue  of  his  trust  [or  office  or  employment]  and  as 
such  officer  [or  director  or  agent]  aforesaid,  then  and 
there,  with  intent  to  defraud  said  corporation  of  the  sum  of 

dollars,    wilfully,    unlawfully,   and    feloniously   did 

make  in  said  record  the  following  false  entry,  to  wit:  [here 
set  out  entry ].^ 

FORM OMITTING    TO    MAKE    ENTRY. 

Then  and  there  was  an  officer,  to  wit, [or  director 

or  agent]  of  C  D,  a  corporation,  and  as  such  officer  [or 
director  or  agent]   then  and  there  received  and  possessed 

himself  of  dollars,   lawful   money   of   the  United 

States,  the  same  being  then  and  there  the  property  of  said 
corporation.  That  said  money  was  not  received  by  said 
A  B  in  payment  of  a  just  demand  due  him,  the  said  A  B, 
and  while  so  possessed  thereof,  as  aforesaid,  the  said  A  B, 
with  intent  then  and  there  to  defraud  said  corporation,  wil- 
fully, unlawfully,  and  feloniously  omitted  to  make,  or  cause 
or  direct  to  be  made,  any  entry  thereof  in  the  books  or 
accounts  of  said  corporation. 

2  People  V.  Leonard,  103  Cal.  200. 


CHAPTER    XXIII. 


FALSE  IMPRISONMENT. 

[Penal   Code,   sec.   236.] 


DEFINED. 

It  is  the  unlawful  violation  of  the  personal  liberty  of 
another.  The  prosecution  must  prove  the  imprisonment; 
hut  this  being  done,  the  law  presumes  it  unlawful,  the  bur- 
den is  cast  upon  the  defendant  of  justifying  it,  by  proving 
that  it  was   lawful.^ 

PENALTY.'^ 

It  is  punishable  by  fine  not  exceeding  five  hundred  dol- 
lars, or  by  imprisonment  in  the  county  jail  not  more  than 
one  year,  or  both.  If  effected  by  violence,  menace,  fraud  or 
deceit  imprisonment  in  state  prison  from  one  to  ten  years. 

FORM FALSE    IMPRISONMENT. 

Wilfully  and  unlawfully  and  without  any  warrant  or 
authority  of  law.  did  arrest  and  detain  one  C  D,  without 
the  consent  and  against  the  will  of  said  C  D,  and  then  and 
there  and  thereby  unlawfully  and  feloniously  did  violate  the 
personal  liberty  of  the  said  C  D. 

>  People  V.  McGrew.  77  Cal.  560. 
2  Penal  Code  237. 


CHAPTER   XXIV. 


KAIvSK  RKRSONATION. 

[Penal  Code.   sees.   528-530.] 


DEFINED. 

This  is  the  false  personating  of  another  for  the  purpose 
of  marriage/  or  of  doing  any  act  whereby  the  person 
falsely  personated  might  become  liable  to  a  suit  or  prose- 
cution, or  to  pay  money,  or  to  incur  any  charge,  forfeiture, 
or  penalty,  or  whereby  any  benefit  migh  accrue  to 
any  other  person.^  To  personate  another  is  to  assume  to  be 
that  other  person ;  the  mere  signing  of  the  name  of  another 
is  not  personating  him.  It  is  essential  that  the  defend- 
ant actually  personated  or  assumed  the  character  of 
another.^  It  does  not  include  the  falsely  assuming  an 
official  character,  but  is  intended  to  cover  acts  done  by  one 
person  while  representing  himself  to  be  another  and  differ- 
ent person.* 

PENALTY. 

If  for  marriage,  or  pretended  marriage,  imprisonment  in 
state  prison  not  exceeding  five  years.**  If  for  receiving 
money  or  property,  same  as  larceny.  Other  personations 
whereby  any  benefit  might  accrue,  imprisonment  in  county 
jail  not  exceeding  two  years,  or  fine  not  exceeding  five 
thousand  dollars." 

FORM — FOR    MARRYING    IN    AN    ASSUMED    NAME. 

Wilfully,  unlawfully,  falsely,  and  feloniously  did  per- 
scnaie  and  represent  himself  to  be  one  C  D,  and  in  such 
assumed  character  did  then  and  there  marry  one  E  F. 

1  Penal  Code  528. 

2  Penal  Code  529. 

3  People  V.  Maurino,   77   Cal.   436. 

4  People  V.  Knox,  119   Cal.   73. 

5  Penal  Code  528. 

6  Penal  Code  529. 


160  CRIMINAL  LAW  AND  PROCKDURE. 

FORM — FOR    PERSONATING    BAIL. 

Wilfully,  unlawfully,  falsely,  and  feloniously  did  person- 
ate and  represent  himself  to  be  one  C  D,  and  in  such 
assumed  character  did  then  and  there  become  bail  and 
surety  for  one  E  F,  in  the  name  of  said  C  D,  in  the  Superior 

Court  of  California,  in  and  for  the  county  of  ,  in  a 

certain  action  then  pending  in  said  court  in  which  

was  plaintiff  and  was  defendant. 

FORM — FOR   ACKNOWLEDGING    A   DEED   IN   THE   NAME  OF 
ANOTHER. 

Wilfully,  unlawfully,  falsely,  and  feloniously  did  per- 
sonate and  represent  himself  to  be  one  C  D,  and  in  such 
assumed  character,  did  then  and  there  acknowledge  before 
one  E  F,  who  was  then  and  there  a  notary  public  in  and  for 

said  county  of  ,  duly  commissioned  and  sworn,  the 

execution  of  a  certain  deed  and  conveyance  of  land,  situ- 
ate in  said  county,  from  the  said  C  D  to  one  G  H,  with 
intent  that  the  same  might  be  recorded,  delivered,  and  used 
as  true. 

FORM— FOR   OBTAINING    PROPERTY   BY    FALSELY   PERSONATING 

ANOTHER. 

Wilfully,  unlawfully,  falsely,  and  feloniously  did  per- 
sonate and  represent  himself  to  be  one  C  D,  and  in  such 
assumed  character,  did  then  and  there  unlawfully  and 
feloniously  receive  from  one  J  D,  a  certain  horse,  of  the 

value   of  dollars,   which   said   horse   was   by    said 

J  D,  intended  to  be  delivered  to  the  said  C  D. 


CHAPTER   XXV. 


[Penal  Code,  sec.   532.] 


DEFINED. 

"The  language  of  the  code  defining  the  offense  is: 
'Every  person  who  knowingly  and  designedly  by  false  or 
fraudulent  representation  or  pretenses  defrauds  any  other 
person  of  money  or  property,  or  who  causes  or  procures 
others  to  report  falsely  of  his  wealth  or  mercantile  char- 
acter, and  by  thus  imposing  upon  any  person  obtains  credit, 
and  thereby  fraudulently  gets  into  possession  of  money  or 
property,  is  punishable  in  the  same  manner  and  to  the 
same  extent  as  for  larceny,  of  the  money  or  property 
so  obtained.'  " 

"Similar  provisions,  varying  slightly  in  verbiage,  but  hav- 
ing a  common  purpose,  are  to  be  found  in  the  statutes  of 
every  state  of  the  union,  so  far  as  our  investigation  extends, 
and  like  their  English  prototypes,  the  earliest  of  which 
is  30  George  II,  chapter  24,  section  I,  are  the  outgrowth 
and  expansion  of  the  old  offense  of  'cheats'  or  'cheating'  as 
it  existed  at  the  early  common  law  proper.  *  *  ♦ 
Cheating  at  common  law  was  a  fraud  perpetrated  by  means 
of  a  false  symbol  or  token,  such  as  selling  goods  by  false 
weights  or  measures,  or  other  like  act  or  thing  of  a  char- 
acter calculated  to  deceive  and  defraud  the  public  or  the 
individual  to  their  pecuniary  injury,  and  against  which 
ordinary  prudence  could  not  guard.  The  inadequacy  of 
this  offense  to  meet  the  demands  of  advancing  methods  of 
trade  arose  in  part  from  the  fact  that  it  did  not  embrace 
any  act  or  thing  accomplished  without  the  aid  of  some 
false   token.     Mere    spoken   lies   or    misrepresentations,'  or 


152  CRIMINAL  LAW  AND  PROCEDURK. 

verbal  perversions  of  the  truth  of  whatsoever  nature, 
employed  to  defraud,  did  not  constitute  the  offense ;  and  it 
was  in  part  to  remedy  this  defect  or  omission  that  the  stat- 
utes creating  the  offense  of  false  pretenses  were  enacted, 
and  which,  by  reason  of  their  wider  comprehension  of  the 
arts  and  methods  of  cheating,  have  largely  superseded  the 
common  law  offense." 

"In  their  origin  both  the  common  law  and  the  statutory 
offenses  were  undoubtedly  designed  and  aimed  solely  at 
protecting  personal  property,  and  in  aid  of  the  laws 
against  larceny  and  theft.  Indeed,  they  appear  to  have 
sprung  into  being  largely  by  reason  of  certain  defects  in  the 
application  of  the  laws  against  larceny.  Among  the  rea- 
sons stated  in  the  statute^  for  enlarging  the  offense  of 
cheating  are  that  'many  light  and  evil-disposed  persons, 
not  minding  to  get  their  living  by  truth,  etc.,  but  compass- 
ing and  devising  daily  how  they  may  unlawfully  obtain  and 
get  into  their  hands  and  possession  goods,  chattels,  and 
jewels  of  other  persons  for  the  maintenance  of  their 
unthrifty  living,  and  also  knowing ^hat  if  they  came  to 
any  of  the  same  goods,  chattels,  and  jewels  by  stealth, 
then  they,  being  thereof  lawfully  convicted,  etc.,  shall  die 
therefore — have  now  of  late  falsely  and  deceitfully  con- 
trived, devised,  and  imagined  privy  tokens  and  counterfeit 
letters  in  other  men's  names,  unto  divers  persons  their  spe- 
cial friends  and  acquaintances,  for  the  obtaining  of  money, 
goods,  chattels,  and,  jewels  of  the  same  persons,  their 
friends  and  acquaintances;  by  color  whereof  the  said  light 
and  evil-disposed  persons  have  deceitfully  and  unlawfully 
obtained  and  gotten  great  substance  of  money,  goods,  chat- 
tels, and  jewels  into  their  hands  and  possession,  contrary 
to  right  and  conscience,'  etc. ;  and  in  one  of  the  early  stat- 
utes relating  to  false  pretenses,  it  is  recited  that,  whereas, 
'a  failure  of  justice  frequently  arises  from  the  subtle  dis- 
tinction between  larceny  and  fraud,'  etc. — one  ot  which 
distinctions  being  that  when  property  was  obtained  by  con- 
sent of  the  owner  intending  to  part  with  the  title,  although 
»  33   Henry  VIII. 


by  the  grossest  fraud,  it  would  not  constitute  larceny."*  To 
constitute  this  offense  four  tliing-s  must  be  shown :  ( i)  An 
intent  to  defraud;  (2)  actual  fraud  committed;  (3)  false 
pretenses  used  for  the  purpose  of  perf)etrating  the  fraud; 
and  (4)  the  accomplishment  of  the  fraud  by  means  of  the 
false  pretenses  made  use  of  for  the  purpose.  The  false 
pretenses  must  be  the  cause  which  induted  the  owner  to 
part  with  his  property.-'  The  party  defrauded  tnust  have 
relied  upon  -the  representations.*  There  must  be  also  a 
knowledge  on  the  part  of  the  accused  that  the  representa- 
tions were  false.^ 

WHAT    IS    A    FALSE    PRETENSE. 

A  false  pretense  is  a  representation  of  some  fact  or  cir- 
cumstances calculated  to  mislead,  which  is  not  true ;  or 
rather  such  a  fraudulent  representation  of  an  existing  or 
past  fact,  by  one  who  knows  it  not  to  be  true,  as  is  adapted 
to  induce  the  person  to  whom  it  is  made  to  part  with  some- 
thing of  value.  The  pretense  need  not  be  in  words,  but 
may  be  gathered  from  the  acts  and  conduct  of  the  party.® 
If  the  contract  is  induced  by  false  pretenses,  the  property 
received  under  such  a  contract  is  obtained  thereby,'^  but  the 
offense  may  be  committed  although  the  party  suffers  no 
loss,  by  reason  of  the  fact  of  afterwards  obtaining  the  prop- 
erty again.  The  parting  with  the  property  on  the  strength 
of  the  pretenses  is  the  gist  of  the  offense.^  Deception, 
deliberately  practiced,  for  the  purpose  of  obtaining  unfair 
advantage  of  another  is  fraud,  and  goods  obtained  thereby 
are  obtained  by  fraud,  and  one  deprived  of  his  prciperty  by 
such  means  is  defrauded. *•  The  intent  of  the  person 
defrauded  is  not  material.  The  offense  is  against  the  pub- 
lic and  not  ag^ainst  the  individual,^''  and  the  carelessness  of 

2  People  V.  Cummings,  114  Cal.  437. 

3  People  V.  Wasservogle,  77  Cal.  175;  People  v,  Jordan.  66 
Cal.  10;   People  v.  Bryant,  119  Cal.  595 

•*  People  V.  Glbbs,   98  Cal.   661. 

5  People  V.  Miliar,  106  Cal.  320. 

«  People  V.  V/asservogle,   77   Cal.   173. 

^  People  V.  Martin,   102  Cal.   558. 

8  People  V.  Bryant,  119  Cal.  595. 

9  People  V.  Nesbitt,   102  Cal.  327. 
10  People  V.  Martin,  102  Cal.  558. 


164  CRIMINAL  LAW  AND  PROCEDURE. 

the  defrauded  party  in  signing  the  note  is  not  an  element 
in  the  case.  Thus,  where  prestidigitation  or  juggling  hav- 
ing been  practiced  in  the  exchange  of  the  note  for  another 
paper  which  the  defrauded  person  believed  he  was  signing^ 
lack  of  care,  or  gross  negligence,  cannot  be  imputed  to  him 
in  signing  the  note,  under  the  false  pretense  and  repre- 
sentation that  he  was  signing  another  paper."  Mere 
expression  of  opinion  does  not  amount  to  a  false  repre- 
sentation i'-*  neither  do  tricks  of  the  trade,  nor  exaggerated 
statements  as  to  the  value  of  the  property,  etc.,  for  the 
customer  is  presumed  to  have  knowledge  of  these  mat- 
ters." But  the  doctrine  of  caveat  emptor,  as  known  ia 
civil  cases,  does  not  apply.  The  guilt  does  not  depend 
upon  the  degree  of  folly  or  credulity  of  the  person 
defrauded,  but  it  is  proper  to  inquire  whether  the  repre- 
sentations were  of  a  character  to  induce  belief  in  the  mind 
of  a  person  of  ordinary  intelligence.^*  The  offense  may 
be  predicated  upon  representations  as  to  solvency,  notwith- 
standing the  defendant  had  an  honest  intent  to  pay  accord- 
ing to  the  contract  ;^°  upon  a  false  representation  to  a 
woman  to  whom  the  defendant  was  engaged  to  be  married 
by  which  he  obtained  money  from  her,^®  and  upon  a  false 
statement  as  to  title  to  property  to  a  person  who  loans 
money  on  the  strength  thereof."  But  property  is  not 
obtained  by  false  pretenses  where  the  owner  parts  with  the 
property  upon  the  strength  of  defendant's  credit." 

WHAT    PROPERTY    SUBJECT    OF. 

The  obtaining  of  a  promissory  note  is  property  within 
the  meaning  of  the  statute  on  false  pretenses,"  and  the 
note  is  a  false  token.-"     It  also  includes  the  giving  of  a 

n  People  V.  Skidmore,  123  Cal.  267. 

»•-«  People  V.  Gibbs,  98  Cal.  661. 

IT  People  V.  Morphy,  100  Cai.  84. 

»■»  People  V.  Cummings,  123  Cal.  269. 

15  People  V.  Wieger,  100  Cal.  352. 

>«  People  V.  Weir.   120  Cal.   279. 

17  People  V.  Hamberg,  84  Cal.  469. 

18  People  V.  Mauritzen,  84  Cal.  37. 

'•'Peop  e  V.  Reed,  70  Cal.  529;Peop:e  v.  Cummings.  114  CaL 

499;  People  v.  Skidmore,  123  CaF.  267. 
2"  People  V.  Gibbs,  98  Cal.  661. 


FALSE    PRETENSE.  155 

check  on  a  bank  where  the  defendant  had  no  funds  or 
credit,  and  the  check  is  a  false  token  ;-^  but  the  proof  of 
obtaining  a  joint  note  when  a  note  of  one  party  is  charged, 
will  not  sustain  a  conviction.--  It  does  not  include 
defrauding  of  real  estate.''* 

DISTINGUISHED    FROM     LARCENY. 

In  larceny  the  owner  does  not  intend  to  part  with  title  and 
possession,  while  in  false  pretenses  he  does.'**  But  larceny 
sometimes  includes  the  obtaining  of  money  by  fraud  where 
the  title  remains  in  the  owner ;  but  where  the  title  as  well  as 
the  possession  is  parted  with,  the  crime  is  that  of  obtaining 
property  by  false  pretenses.-"  In  false  pretenses  the  title 
passes  from  the  party  defrauded  to  the  party  making  the 
false  representation.-"  If  the  possession  has  been  obtained 
by  fraud,  trick,  or  device,  and  the  owner  of  it  intends  to 
part  with  his  title  when  he  gives  up  the  possession,  the 
offense,  if  any,  is  obtaining  money  by  false  pretenses.  But 
where  the  possession  has  been  obtained  through  a  trick  or 
device,  with  the  intent  at  the  time  the  party  receives  it,  to 
convert  the  same  to  his  own  use,  and  the  owner  of  the 
property  parts  merely  with  the  possession,  and  not  with 
the  title,  the  offense  is  larceny. ^^  The  question  of  whether 
the  crime  is  larceny  or  obtaining  money  under  false  pre- 
tenses, depends  upon  the  question  of  fact  whether  the  owner 
of  the  money,  at  the  time  of  parting  with  the  possession  of 
it,  intended  to  part  with  the  title  thereto.  If  he  did  not 
intend  to  part  with  the  title,  but  merely  gave  possession  for 
a  special  purpose,  and  in  no  event  to  be  used  by  defendant 
for  his  own  purposes,  the  offense  of  taking  it,  with  intent 
to  steal,  is  larceny,  and  not  obtaining  money  under  false 

21  People  V.  Donaldson,  70  Cal.  116;  People  v.  Wasservogle, 
77  Cal.  175. 

22  People  V.  Cummings,  117  Cal.  497. 
-3  People  V.  Cummings,  114  Cal.  437.. 

2*  People  V.  Martin,  102  Cal.  558;  People  v.  Campbell,  127 
Cal.  278;  People  v.  Raschke,  73  Cal.  378;  People  v. 
Johnson,  91  Cal.  265;   People  v.  Tomlinson,  102  Cal.  19. 

25  People  V.  Rae,   66  Cal.   423. 

26  People  y.  Johnson,  91  Cal.  265;  People  v.  Shaughnessy, 
110  Cal.  602;    People  v.  Montarial,   120  Cal.  695. 

27  People  V.  Tomlinson,  102  Cal.  23;  People  v.  Raschke, 
73  Cal.  378;   People  v.   Shaughnessy,  110  Cal.  602. 


^HlB  CRIMINAL.  LAW  AND  PROCEDURE. 

pretenses.^"  And  where  the  facts  show  larceny  the  defend- 
ant may  be  convicted  of  that  crime,  although  they  also 
would  sustain  a  charge  of  obtaining  money  under  false 
pretenses.***  But  where  the  evidence  shows  only  larceny, 
the  defendant  cannot  be  convicted  under  an  indictment  for 
obtaining  money  by   false .  pretenses.^" 

EvroENCE. 

The  prosecutor  need  not  testify  directly  as  lo  the  effect 
of  the  representations  upon  him.'^  The  falsity  of  the  rep- 
resentation as  to  solvency  may  be  proven  by  depositions 
takeiV  in  the 'insolvency  proceedings.^-  The  rules  of  evi- 
dence in  civil  cases  as  to  direct  or  colla'teral  attack  on  a 
contract  by  parties  to  it,  is  not  applicable  on  a  prosecution 
for  false  pretenses.*'  The  admissions  of  the  defendant  are 
not  sufficielit  to  prove  the  corpus  delicti,^*  and  a  conviction 
cannot  be  had  on  the  uncorroborated  testimony  of  the  prose- 
cutor.^" The  delivery  of  the  property  and  the  vesting  of 
title  are  questions  for  the  jury.*' 

VERDICT. 

The  verdict,  fniding  the  defendant  guilty  as  charged  in 
the  information,  is  not  defective  by  reason  of  not  finding 
the  amount  of  money  obtained  by  him  from  the  fraud  prac- 
ticed ;  but  the  verdict,  when  taken  in  connection  with  the 
information  becomes  as  certain  as  to  the  amount  of  money 
obtained  as  if  the  amount  were  expressly  stated  therein."  . 

PENALTY. 

It  is  punishable  in  the  same  manner,  and  to  the  same 
extent,  as  for  larceny  of  money  or  property  so  obtained. 

28  People  V.  De  Graaff,  127  Cal.  676. 

2»  People  V.  Campbell,  127  Cal.  278;  People  v.  Frigerio,  107 

Cal.  152. 
30  People  V.  Lewis,  127  Cal.  207. 
81  People  V.  Hong  Quin  Moon,  92  Cal,  41. 
»2  People  V.  Wieger,  100  Cal.  352. 
»«  People  V.  Martin,  102  Cal.  558. 
84  People  V.  Simonsen,  107  Cal.  345. 
86  People  V.  Gibbs,  98  Cal.  661. 
««  People  V.  Donaldson,  70  Cal.  116. 
3T  People  V.  Millan,  106  Cal.  320. 


FALSE    PRETENSE.  167 

INDICTMENT. 

When  a  description  of  the  property  forms  a  part  of 
the  false  pretenses,  it  must  be  set  out  exactly  as  it  was 
made  by  the  defendant.^®  The  falsity  of  the  representa- 
tions cannot  be  alleged  by  way  of  a  negative  pregnant." 
The  facts  constituting  the  false  pretenses  must  be  alleged 
with  particularity ;  fraud  is  a  question  of  law  to  be  deduced 
from  the  facts  alleged/" 

FORM OBTAINING    MONEY    BY    FALSE    PRETENSES. 

With  intent  to  defraud  one,  C  D,  of  his  property,  unlaw- 
fully, knowingly,  and  designedly,  falsely,  and  feloniously 
did  represent  and  pretend  to  the  said  C  D,  that  two  certain 
bars  and  pieces  of  metal  which  he,  the  said  A  B,  then  and 
there  had  and  produced  to  the  said  C  D  were  both  pure 
gold,  and  were  of  the  value  of  one  thousand  dollars  each 
and  of  the  aggregate  value  of  two  thousand  dollars,  and 
the  said  C  D  then  and  there  believing  said  false  pretenses 
and  representations,  and  being  deceived  thereby,  was  ■ 
induced  by  reason  of  such  false  pretenses  and  representa- 
tions, so  made  as  aforesaid,  by  the  said  A  B  to  loan  and 
deliver  and  did  then  and  there  deliver  to  said  A  B,  on 
pledge  and  security  of  the  said  two  bars  and  pieces  of 
metal,  the  sum  of  eight  hundred  and  thirty-one  dollars  in 
lawful  money  of  the  United  States,  which  said  money  was 
so  secured  and  obtained  by  the  said  A  B.  unlawfully,  know- 
ingly, and  designedly  to  defraud  said  C  D,  and  which  said 
bars  and  pieces  of  metal  at  the  said  time  and  place,  when 
and  where  the  same  were  pledged  as  aforesaid,  were  not 
gold,  and  had  not  any  value  beyond  the  value  of  so  much 
brass,  to  wit,  had  not  any  value  in  excess  of  the  sum  of 
five  dollars  in  lawful  money  of  the  United  States,  as  the 
said  A  B,  then  and  there  well  knew.*^ 

FALSE    SWEARING,    see    PERJURY. 
FEMALE,  see  ABDUCTION   AND  SEDUCTION. 

38  People  V.  Nesbit,  102  Cal.  327. 

30  People  V.  Griffiths,  122  Cal.  212. 

*o  People  V.  McKenna,  81  Cal.  158;   People  v.  Nell.  91  CaL 

466;    People  v.  Faust,  113  Cal.  175. 
ti  People  V.  Millan,  106  Cal.  320;   People  v.  Jordan,  66  CaL 

10;   People  v.  Donaldson,  70  Cal.  116.  . 


CHAPTER   XXVI. 


FORGBRY. 

[Penal  Code,  sees.  470-482.1 


DEFINED. 

"Forgery  is  the  false  making,  altering,  forging,  counter- 
feiting, uttering,  or  attempting  to  pass,  with  intent  to 
defraud,  any  of  the  instruments  mentioned  in  the  statute.^ 
The  code  diflfers  from  the  common  law  as  to  the  enumera- 
tion of  what  instruments  are  the  subjects  of  forgery,  but 
does  not  differ  from  the  common  law  as  to  what  consti- 
tutes forgery  of  instruments  which  are  the  subject  of  for- 
gery. At  common  law  there  were  frequently  embarrass- 
ing questions  as  to  what  kinds  of  writings  were  the  sub- 
ject .of  forgery,  while  the  code,  to  avoid  these  questions, 
enumerates  a  very  large  number  of  writings  which  are  sub- 
jects of  forgery.  It  is  a  felony,  no  matter  how  small  the 
amount  involved ;  and  it  differs  from  false  pretenses  in  this, 
that  in  forgery  there  must  be  a  false  making  or  counterfeit- 
ing of  the  instrument,  while  in  false  pretenses  there  is  false 
assumption  of  authority  and  the  obtaining  of  ptupirty 
thereby.^ 

INSTRUMENTS    CAPABLE    OF    FORGERY. 

It  must  be  an  instrument,  which,  if  genuine,  could 
injure  or  defraud  another  person,^  and  it  must  be  of  a 
writing  which  falsely  purports  to  be  the  writing  of  another.* 
But   forgery  may  be  committed  by  the  signing  of  one's 

1  Penal  Code  470. 

2  People  V.  Bendlt,  111  Cal.  274. 

3  People  V.  Terrlll,  127  Cal.  99;  People  v.  Bibby,  91  Cal. 
470;  Ex  parte  Finley,  66  Cal.  263;  People  v.  Munroe,  100 
Cal.  666;   People  v.  Tomlinson,  35  Cal.  503. 

*  People  V.  Cole,  130  Cal.  13;  People  v.  Tomlinson,  35  Cal. 
506;   People  v.  Bendit,  111  Cal.  277. 


FORGtRY.  169 

own  name,  where  the  name  is  identical  with  that  of  another 
person,  and  was  signed  with  a  fraudulent  intent  to  defraud 
another  person."^  And  where  the  forgery  is  alleged  to  be 
for  recording  a  false  instrument,  it  is  criminal  only  when 
such  an  instrument  is  entitled  to  be  recorded."  As  was 
said  in  the  previous  section,  the  instruments  which  are  the 
subjects  of  forgery  are  defined  by  the  statute,  and  it  will 
be  unnecessary  to  enumerate  them,  but  forgery  may  be 
predicated  upon  instruments  which  are  void  on  the  ground 
that  they  are  against  public  policy,  or  ultra  vires,''  upon  a 
certificate  of  recordation,®  upon  an  alteration  of  a  check 
already  made,  wath  intent  to  defraud,"  an  assignment  of 
an  unearned  salary  of  a  teacher,^"  a  requisition  for  a  school 
warrant,^*  a  certified  copy  of  a  decree  of  a  court,^^  or  upon 
an  endorsement  on  an  unstamped  draft. ^^  But  it  cannot 
"be  predicated  upon  a  letter  to  a  collector  of  customs  under 
the  Federal  government.^*  nor  for  the  making  or  passing 
of  a  check  signed  by  a  fictitious  person. ^^  Forgery  of  a 
mortgage  may  be  committed,  even  though  such  instrument 
to  be  valid  should  be  executed  by  the  wife  also ;  and  the 
placing  on  record  is  a  sufficient  uttering  and  deliverv  of 
a  mortgage.^® 

INVALID    INSTRUMENTS. 

A  writing  which  is  niiduvi  pactum  is  not  the  subject  of 
forgery ;  but  the  test  of  the  forgery  of  a  contract  is  whether, 
upon  its  face,  it  may  have  the  effect  to  defraud  those  who 
may  act  upon  it  as  genuine,  although  it  may  not  possess 

5  People  V.  Rushing,  130  Cal.  449. 

6  People  V.  Harrow,    84    Cal.    367;    People    v.    O'Brien,    96 
Cal.  179. 

7  People  V.  Munroe,    100    Cal.    664;    People   v.    James,    110 
Cal.  158;   People  v.  Wong  Sam,  117  Cal.  30. 

8  People  V.  Turner,  113  Cal.  278. 

9  People  V.  Brotherton,  47   Cal.   388. 

10  People  V.  Munroe,  100   Cal.   664. 

11  People  V.  Bibby,  91  Cal.  470. 

12  Ex  parte  Finley,  66  Cal.  262. 

13  People  V.  Frank,    28   Cal.    507;    People   v.   Tomlinson,   35 
Cal.  507. 

14  People  V.  Wong  Sam,   117   Cal.   29. 

15  People  V.  Elliott,    90   Cal.    586;    People   v.    Eppinger,   105 
Cal.  38;  People  v.  Laird,  118  Cal.  293. 

16  People  V.  Baker,    100   Cal.    188. 


160  CRIMINAL  LAW  AND.  PROCEDURE. 

the  legal  requisites  of  a  negotiable  paper  and  although  the 
party,  in  whose  name  it  purports  to  be  made,  had  no  legal 
capacity  to  make  it,  and  the  person  to  whom  it  was  directed 
was  not  bound  to  act  upon  it,  even  if  genuine."  Where  an 
in.strunient  is  null  upon  its  face,  it  is  not  a  subject  of  forg- 
ery, however,  without  some  allegation  aliunde  that  it  can 
be  made  to  defraud.*' 

INTENT  TO  DEFRAUD. 

Intent  to  defraud  is  an  essential  element,  and  must  be 
specifically  proved. *°  But  it  is  sufficient  if  uttered  with 
intent  to  defraud,  and  need  not  appear  that  the  making 
was  also  with  such  intent.*"  For  each  of  the  acts  enum- 
erated in  the  statute,  that  is,  the  uttering  and  passing,  as 
well  as  the  making,  is  forgery.^*  And  the  accused  may 
be  indicted,  tried,  and  convicted  of  all  as  one  crime,  or 
of  any  one  of  the  series  of  acts  mentioned  in  the  statute,*^ 
for  the  making  and  uttering  are  but  one  offense"  Actual 
injury  is  not  essential  to  constitute  the  oflFense.^*  It  is  not 
necessary  to  a  conviction  under  an  indictment  for  forging 
an  order  for  the  delivery  of  goods,  that  the  order  should  be 
signed  in  the  name  of  a  party  having  goods  in  possession 
of  drawee." 

FALSE  SIGNATURE. 

There  must  be  shown  to  be  a  signing  of  another's  name 
without  authority.  Absence  of  authority  to  sign  must  be 
shown  in  order  to  convict.^*  So  the  signature  of  another 
by  the  accused  as  his  agent  is  not  forgery.^^  Neither  does 
forgery  include  the    signing  of  a    fictitious    name.^®      But 

IT  People  V.  James,  110  Cal.  155. 

18  People  V.  Tomlinson,   35    Cal.    503;    People   v.    Todd,    77 

Cal.  466. 
i:>  l-e^pe  V.  Mitchell,  92   Cal.   590. 

2"  EJx  parte  Finley.  66  Cal.  262;  People  v.  Todd,  77  Cal.  466. 
.21  People  V.  Ah  Woo,  28  Cal.  206. 
22  People  V.  Shotwel],    27    Cal.    394;    People    v.    Frank,    28 

Cal.  513. 
2-J  People  V.  Leyshon,  108  Cal.  440. 
2*  People  V.  Turner,  113  Cal.  278. 
25  People  V.  Way,  10  Cal.  336. 
20  People  V.  Lundin,    117   Cal.   124;    People   v.    Mitchell.   92 

Cal.  590. 
27  People  V.  Bendlt,  111  Cal.  274. 
•-•«  People  V.  ElHctt,   DO   Cal.   586. 


FORGERY.  161 

where  two  persons  existed  who  bore  the  same  name  as  that 
signed  to  the  check,  neither  of  whom  signed  nor  author- 
ized the  signature,  it  cannot  be  claimed  that  the  check  was 
fictitious. ^°  Neither  does  the  misspelling  of  the  name 
forged  render  it  less  a  forgery.  The  doctrine  of  idem 
sonans  applies.'" 

KNOWLEDGE. 

In  order  to  convict  a  person  uttering  a  forged  instru- 
ment of  forgery,  it  is  essential  that  he  have  knowledge  that 
it  was   false  and   forged. ^^ 

FICTITIOUS    INSTRUMENTS. 

Forgery  and  the  making  of  fictitious  checks  are  distinct 
oflFenses ;  and  though,  by  the  criminal  law  of  England,  the 
making  of  a  fictitious  check  would  be  punishable  as  forgery, 
a  distinctly  different  punishment  is  designated  under  the 
code.  And  a  conviction  of  forgery  cannot  be  sustained 
upon  evidence  of  making  a  fictitious  check.'^ 

EVIDENCE. 

Evidence*  of  subsequent  transaction  between  the  defend- 
ant and  the  person  defrauded,  after  the  delivery  of  the 
note,  is  admissible  if  it  tends  to  show  fraudulent  intent." 
But  testimony,  explaining  the  paper  introduced  in  evidence 
which  tends  to  connect  defendant  with  a  previous  attempt 
to  commit  a  similar  offense,  is  not  admissible.^*  But  for 
the  purpose  of  proving  knowledge,  it  may  be  shown  that 
the  defendant  murdered  the  man  whose  name  was  forged 
to  the  instrument.^'  A  recent  possession  of  the  forged 
instrument  may  be  shown  as  against  one  claiming  under 
it,^^  and,  under  an  indictment  for  forging  a  mortgage  the 
note  set  out  in  the  mortgage  may  be  proved  to  be  forged 
also.^^     The  sheriff's  return  of  a  subpoena  is  not  prima  facie 

29  People  V.  Laird,   118  Cal.   291. 

30  People  V.  Alden,  113  Cal.  264. 

31  People  V.  Mitchell,  92  Cal.  590. 

32  People  V.  Eppinger,  105  Cal.  36. 

33  People  V.  Phillips,  70  Cal.  61. 

34  People  V.  Creegan,  121  Cal.  554. 

35  People  V.  Sanders,  114  Cal.  216. 

36  People  V.  Smith,  103  Cal.  563. 

37  People  V.  Baker,  100  Cal.  188. 

CRIMES--11 


162  CRIMINAL  LAW  AND  PROOEDDRE. 

evidence  of  the  non-existence  of  the  person  whose  name  is 
signed  to  the  check,'*  but  testimony  of  the  teller  of  the 
bank,  on  which  the  check  was  drawn,  that  no  person  by 
the  name  signed  thereto,  had  an  account  on  the  books  of 
the  bank,  is  prima  facie  evidence  of  its  fictitious  character," 
and  for  the  same  purpose  the  city  directory  and  the  great 
register  are  admissible.*"  And  evidence  of  a  fruitless 
•search  for  the  person  whose  name  is  forged  may  be  intro- 
tlueed.**  The  burden  of  proving  that  the  name  was  signed 
without  authority  is  on  the  people.*^  But  the  want  of 
authority  is  shown  when  the  person,  whose  name  is  signed, 
testifies  that  he  did  not  sign,  nor  authorize  the  defendant 
to  sign.*'  Enlarged  photographs  of  the  writing  may  be 
introduced  in  the  discretion  of  the  court."  Expert  evi- 
dence as  to  means  of  removing  writing  is  admissible,*" 

VARIANCE. 

A  slight  variance  in  the  spelling  of  the  name  of  the  per- 
son to  be  defrauded  is  immaterial,*"  and  a  variance  in  the 
spelling  of  a  word  in  the  forged  instrument  will  jiot  exclude 
it.  Its  import  is  proper  for  the  jury  to  pass  upon,*^  and  a 
variance  that  in  no  manner  alters  the  signification  of  the 
instrument  is  immaterial,*®  as  where  the  indictment  for  the 
forgery  of  a  mortgage,  alleges  no  certificate  of  acknowledge- 
ment on  the  mortgage,  and  the  mortgage  offered  in  evi- 
dence has  such  certificate.*"  Where  the  only  evidence  to 
sustain  a  charge  of  forgery  of  a  check  is  the  testimony  of 
an  expert,  who,  upon  comparison  of  hand-writing,  testifies 

38  People  V.  Lee,  128  Cal.  330. 

8»  People  V.  Eppinger,  105  Cal.  36. 

*o  People  V.  Laird,   118   Cal.   291;    People  v.   Eppinger,   105 

Cal.  36. 
*i  People  V.  Sanders,  114  Cal.  216. 
*2  People  V.  Whiteman,  114  Cal.  338;  People  v.  Lundin,  117 

Cal.  127;  same  case,  120  Cal.  310;  People  v.  Mitchell,  92 

Cal.  590. 
"  People  V.  Lundin,  120  Cal.  308. 
♦«  People  V.  Bird,  124  Cal.  32. 
"  People  V.  Dole,  122  Cal.  486. 
«  People  V.  James,  110  Cal.  155;  People  v.  Orieleus.  79  Cal 

180. 
"  People  V.  Cummings,  57  Cal.  88. 
<8  People  V.  Phillips,  70  Cal.  61. 
«  People  V.  Baker,  100  Cal.  188. 


FORGERY.  163 

that  the  defendant,  in  his  opinion,  wrote  the  same,  it  is 
insufficient  to  sustain  a  conviction. °" 

POSSESSION    OF    COUNTERFEITING    IMPLEMENTS. 

To  constitute  the  crime  of  guilty  possession  of  counter- 
feiting implements  or  forged  notes,  with  intent  to  pass 
them,  the  law  only  requires  guilty  possession.  It  is  not 
necessary  that  the  intent  to  fill  up  unfinished  notes  should 
be  proved  bv  an  attempt  to  do  so.  Possession,  with  knowl- 
edge of  the  purpose  for  which  they  are  designed,  is  suf- 
ficient,°'  and  to  show  the  guilty  intent  of  the  possession,  it 
may  be  proved  that  the  defendant  also  had  possession  of 
counterfeit  money. ^^  The  possession  of  counterfeit  coin  and 
sale  to  one  is  sufficient  evidence  of  guilty  possession.  The 
intent  to  defraud  is  shown  where  the  coin  is  passed  to  a 
particular  person,  to  be  by  him  passed  to  others.''^  The 
counterfeiting  of  foreign  bank  notes  is  punishable  the  same 
as  domestic  bank  notes.°* 

VERDICT. 

A  general  verdict  of  guilty  as  charged  cannot  stand 
where  the  information  contains  two  counts  and  one  of 
which  is  defectively  pleaded,^^  and  as  the  passing  of  a 
fictitious  check  and  forgery  are  distinct  offenses,  a  judg- 
ment on  one,  under  an  indictment  for  the  other,  is  void."' 

INDICTMENT. 

Where  the  instrument  set  out  is  null  on  its  face,  the 
indictment  must  allege  other  matters  which  show  that  it 
can  be  made  to  defraud."  iBut  the  manner  of  the  fraud 
need  not  be  alleged.  If  payable  to  the  defendant  it  is 
sufficient  to  charge  him  for  the  crime  without  alleging  any 

50  People  V.  Mitchell,  92  Cal.  590. 

51  People  V.  Ah  Sam,  41  Cal.  645;   People  v.  McDonnell,  80 
Cal.  285. 

52  People  V.  White,  34  Cal.   183. 

53  People  V.  Farrell,  30  Cal.  316.  j  i 

54  People  V.  McDonnell,  80  Cal.  285. 

55  People  V.  Mitchell,    92    Cal.    590;    People   v.    Smith,    103 
Cal.  567;  People  v.  Turner,  113  Cal.  281. 

66  People  V.  Eppinger,  114  Cal.  350. 

5T  People  V.  Tomlinson,    35   Cal.    503;    People   v.    Todd,    77 
Cal.  466. 


164  CRIMINAL  LAW  AND  PROCBDURE. 

endorsement  f^  and  it  is  not  necessary  to  allege  a  false 
making  and  forging,  as  forging  implies  false,""  nor  any  of 
the  facts  whose  existence  is  assumed  by  the  instrument 
itself.""  It  need  not  contain  a  copy  of  the  instrument 
alleged  to  have  been  the  subject  of  the  forgery,'^  and  where 
the  instrument  is  in  a  foreign  language,  it  is  sufficient  lo 
set  out  an  English  translation  f^  and  it  need  not  allege 
evidentiary  matters  aliunde;'^'*  and  in  the  making  and  utter- 
ing of  a  fictitious  order  the  indictment  need  not  show  that 
the  person  to  whom  it  was  uttered  was  connected  with  the 
person  intended  to  be  defrauded.®*  The  making  and  utter- 
ing are  but  one  offense,*"*  and  may  be  charged  in  one  indict- 
ment;"' and  all  acts  enumerated  in  the  statute  may  be 
charged  in  one  or  in  different  counts.®^  In  an  infor- 
mation for  forgery  in  raising  a  check  the  legal  existence 
of  the  bank  need  not  be  shown,  nor  need  the  authority  of 
the  person  certifying  it.***  Where  a  fictitious  check  is 
signed  by  a  co-partnership  name,  the  information  must 
allege  the  existence  of  the  individual  members  of  that 
firm." 

PENALTY. 

Imprisonment  in  state  prison  from  one  to  fourteen  years. 

FORM FORGERY. 

[Penal   Code,   sec.   470.] 
Wilfully,   unlawfully,   feloniously,  and  falsely  did  utter 
and  pass  to  one  E  F  a  certain  false,  forged,  and  counterfeit 
check,  as  the  true  and  genuine  check  of  one  C  D,  for  the 

58  People  V.  Ah  Woo,  28  Cal.  206;   People  v.  Todd,  77  Cal. 
466. 

59  People  V.  Mitchell,    92    Cal.    590;    People    v     Tomlinson, 
102  Cal.  25. 

00  People  V.  Bibby,   91   Cal.   470. 

01  People  V.  O'Brien,    96    Cal.    174;    People    v.    Terrill.    132 
Cal.  499. 

82  People  V.  Ah  Woo,  28  Cal.  200. 

«3  People  V.  Todd,  77  Cal.  464;  People  v.  Bibby,  91  Cal    470 

«<  People  V.  Arlington,  123  Cal.  356. 

«5  People  V.  Leyshon,  108  Cal.  440. 

«•  People  V.  Mitchell,    92    Cal.    590;    People    v.    Smith,    103 

Cal.  563. 
«T  People  V.  Frank,  28  Cal.  507. 
•8  People  V.  Dole,  122  Cal.  486. 
«n  People  V.  Epplnger,  105  Cal.  36. 


FORGERY.  165 

payment  of  dollars,  which  aforesaid  false,  forged, 

and  counterfeit  check  is  in  the  words  and  figures  as  fol- 
lows, to  wit,  [here  set  out  in  full]  with  the  intent  then  and 
there  to  prejudice,  damage,  and  defraud  the  said  E  F,  he, 
the  said  A  B,  then  and  there  well  knowing  the  said  false, 
forged,  and  counterfeit  order  to  be  false,  forged,  and  coun- 
terfeited." 

FORM — FORGERY  OF  INSTRUMENT  AND  OFFERING  FOR  RECORD. 
[Penal   Code,  sec.   470.] 

With  intent  to  defraud  one  C  D,  did  falsely  make,  alter, 
forge  and  counterfeit  a  certain  bill  of  sale  [or  other  instru- 
ment, naming  it]  and  writing  obligatory,  said  instrument 
being  in  the  following  words  and  figures,  to  wit,  [here  set 
out  the  instrument  in  full]   That  thereafter,  to  wit,  on  the 

—  day  of  ,  190 — ,  said  A  B,  well  knowing  that  said 

instrument  was  false,  altered,  forged,  and  counterfeited,  and 
with  intent  to  defraud  C  D  ["or  some  person  unknown  to 
the  grand  jury"]  did,  at  the  county  and  state  aforesaid, 
utter,  publish,  and  pass  as  true  and  genuine  the  instrument 
aforesaid,  by  offering  the  said  instrument  for  record,  at 
the  office  of  the  county  recorder  of  the  county  and  state 
aforesaid,  and  then  and  there  causing  the  same  to  be 
recorded  as  a  record  in  said  office. '^^ 

FORM PASSING   COUNTERFEIT  COIN. 

[Penal  Code,  sec.  477.] 
Well  knowing  the  same  to  be  false,  forged,  and  counter^ 
feited,  wilfully  and  feloniously  did  pass  and  give  in  pay- 
ment to  one  C  D,  with  intent  to  defraud  the  said  C  D,  five 
certain  false,  forged,  and  counterfeited  silver  coins,  of  the 
species  of  silver  coin  then  and  now  current  coin  in  the 
state  of  California,  of  the  denomination  of  dollars. 

FORM POSSESSION   OF   COUNTERFEIT   COIN,    WITH    INTENT   TO 

PASS. 
[Penal   Code,  sec.  479.] 

Wilfully,  feloniously,  and  knowingly  did  have  in  his 
possession  five  counterfeit  silver  coins  of  the  species  of 
silver  coin  then  and  now  current  in  the  state  of  California, 

70  People  V.  Ah  Woo,  28  Cal.  206. 

71  People  V.  Harrold,  84  Cal.  567. 


166  CRIMINAL  LAW  AND  PROCEDURE. 

of  the  denomination  of  half  dollars,  with  intent  then  and 
there  wilfully,  feloniously,  and  unlawfully  to  utter  and  pass 
the  same,  with  intent  then  and  there  to  defraud  one  C  D 
and  other  persons  to  the  grand  jury  unknown^* 

FORM — KEEPING     IN     POSSESSION     UNFINISHED    BANK    BILLS 
TO   DEFRAUD. 

[Penal  Code,  sec.  475,] 

Feloniously,  falsely,  and  wilfully  did  have  and  keep  in  his 
possession  five  hundred  certain  false,  forged,  and  counter- 
feit blank  and  unfinished  bank  bills,  each  made  in  the  form 
and  similitude  of  a  bill  for  the  payment  of  money,  made  to 
be  issued  by  an  incorporated  bank,  viz.,  ,  a  corpora- 
tion then  lawfully  organized  and  incorporated  under  the 
laws  of and  then  carrying  on  business  as  such  bank- 
ing corporation  at  ,  which  said  five  hundred  blank 

and  unfinished  counterfeit  bank  bills  so  had  and  kept  in  the 
possession  of  the  said  A  B  are  each  in  the  words  and  figures 
following,  viz.,  [here  set  out  in  full]  with  intention  to  fill 
up  said  blank  and  unfinished  bills,  and  permit,  cause  and 
procure  the  same  to  be  filled  up  and  completed  in  order  to 
utter  and  pass  the  same  and  to  cause  the  same  to  be  uttered 
and  passed  as  true  and  genuine  bills  of  said  corporation,  to 
defraud  said  .''* 

FORM — POSSESSION   OF   COUNTERFEITING  DIES. 

[Penal  Code  sec.  477.] 

Knowingly,  wilfully,  unlawfully,  and  feloniously,  did  have 
in  his  possession  a  certain  stamp,  block,  die  and  plate  made 
use  of  in  counterfeiting  bank  notes,  in  the  likeness  and 
similitude  of  the  genuine  five  pound  notes  of  the  bank  of 
England.^* 

«  People  V.  Stanton,  39  Cal.  698. 
78  People  V.  Ah  Sam.  41  Cal.  646. 
7«  People  V.  McDonnell,  80  Cal.  286. 


CHAPTER   XXVII. 


FRA.UDUIvENTLY    TAKING   ^WATER 
KRO]VI   IVIAIN. 

[Penal  Code,  sec.   499.] 


With  intent  to  injure  and  defraud  the  Company, 

and  without  the  consent  of  said  company,  the  owners 
thereof,  and  with  intent  to  evade  payment  for  the  water 
taken  therefrom,  made  connections  by  means  of  a  certain 
pipe,  tube,  and  instrument  with  certain  mains  and  service 

pipes  of  the    said  Company    and    maintained  the 

same  for  the  purpose  of  taking  water  therefrom  for  the 
supply  of  certain  tanks  and  water-works  kept  and  main- 
tained by  said  A  B.^ 

1  Ex  parte  Habling,  66  Cal.  215. 


CHAPTER   XXVIII. 


GAMING. 

[Penal  Code.  sees.  330-332.] 


DEFINED. 

The  Statute  against  gaming  is  designed  to  prevent  cer- 
tain banking  and  percentage  games  named  therein,  from 
being  played  at  all,  and  to  prevent  cheating  by  sleight  of 
hand,  pretensions  to  fortune  telling,  tricks,  or  other  means 
by  use  of  cards  or  other  implements.^ 

UNLAWFUL  GAMES. 

A  banking  game  is  a  game  conducted  by  one  or  more 
persons  where*  there  is  a  fund  against  which  everybody 
has  a  right  to  bet,  the  owner  of  the  game  paying  all  losses 
and  taking  all  the  winnings.^  Dealing  and  conducting  the 
game  of  faro  is  an  offense  under  the  code,  whether  a  bank- 
ing game  or  not.*  The  fact  that  the  game  is  played  with 
short  cards  does  not  change  its  character,'' 

EVIDENCE. 

The  definition  of  such  a  game  is  a  question  of  law,  and 
expert  evidence  is  not  admissible  to  determine  its  character. 
But  a  witness  who  knows  the  game  may  testify  in  general 
terms  what  the  game  he  witnessed  was,  or,  if  not  familiar 
with  it,  may  describe  it,  and  the  court  will  instruct  the  jury 
as  to  what  constitutes  the  game  charged."  If  a  witness  of 
his  own  knowledge  knows  what  the  game  is,  and  saw  the 
defendant  dealing  or  conducting  it,  he  may  testify  to  the 

2  Penal  Code,  sections  330  and  332. 
»  People  V.  Carroll,  80  Cal.  153. 
*  People  V.  Gosset,  93  Cal.  641. 
5  People  V.  Gosset,  93  Cal.  641. 
«  People  V.  Carroll,  80  Cal.  153. 


GAMING.  169 

fact  that  he  saw  the  defendant  dealing  the  game,  leaving 
his  knowledge  on  the  subject  to  be  tested  on  cross  examin- 
ation." But  expert  testimony  is  not  allowed  as  to  the  char- 
acter of  the  game.  The  court  will  take  judicial  notice  of 
what  games  are  prohibited  by  law.**  But  it  will  not  take 
judicial  notice  that  a  "pool"  necessarily  involves  gambling 
for  money."  Nor  can  a  witness  testify  that  a  series  of  acts 
testified  to  by  another  witness  constitutes  a  particular 
game.^"  But  evidence  is  admissible  to  identify  the  game.^^ 
The  articles  used  in  carrying  on  and  conducting  the  game 
are  part  of  the  res  gestae  and  admissible  in  evidence  to  illus- 
trate the  nature  of  the  game.^^ 

INDICTMENT. 

An  information  for  carrying  on  a  game  need  not  allege 
that  it  was  carried  on  as  an  owner  or  employee/^  and  it  is 
not  necessary  to  allege  that  the  game  was  a  banking  game. 
All  of  the  acts  enumerated  in  the  statute  may  be  charged 
in  a  single  count,  or  one  may  be  charged  separately."  But 
where  the  information  charges  a  defendant  with  conducting 
a  banking  game,  where  the  statute  requires  that  it  be  played 
for  money,  it  charges  no  offense.^" 

PENALTY. 

For  conducting,  playing  or  betting  on  a  prohibited  game, 
fine  not  less  than  one  hundred  dollars  nor  more  than  five 
hundred  dollars,  or  imprisonment  in  the  county  jail  not 
exceeding  six  months,  or  by  both.  For  obtaining  money 
or  property  by  means  of  a  fraudulent  game,  punishment 
as  in  cases  of  larceny,  of  property  of  like  value. ^^^     Where 

7  People  V.  Gosset,  93  Cal.  641. 

8  People  V.  Carroll,  80  Cal.  153;  People  v.  Rose,  85  Cal. 
378;  People  v.  Gosset,  93  Cal.  641;  People  v.  Shaughnessy, 
110  Cal.  598. 

»  Ex  parte  Bernert,  62  Cal.  524. 

10  People  V.  Gosset,  93  Cal.  641. 

11  People  V.  Sam   Lung,   70  Cal.   515;    People  v.  Carroll,  80 
Cal.  153. 

12  People  V.  Sam  Lung,  70  Cal.  515. 

13  People  V.  Sam  Lung,  70  Cal.  515. 

14  People  V.     Gosset,  93  Cal.  641. 

15  People  V.  Carroll,  80  Cal.  153. 

16  Penal  Code  330-332. 


170  CRIMINAL  LAW  AND  PROCEDURE. 

a  fine  is  imposed  on  conviction  for  gaming,  the  defendant 
may  be  imprisoned  to  enforce  its  payment.^^  It  is  the  duty 
of  the  court  in  which  the  conviction  has  been  had,  to  specify 
in  the  judgnient,  the  amount  of  the  fine  and  the  term  of 
imprisonment.*' 

FORM— CONDUCTING  PROHIBITED  GAME. 

Wilfully  and  unlawfully  did  conduct  and  carry  on  [or 
deal,  play,  or  open]  a  certain  game  of  fan-tan  [or  faro, 
monte,  roulette,  lansquenet,  rouge  et  noir,  rondo,  stud-horse 
poker,  seven-and-a-half,  tan,  twenty-one  or  hokey-pokey], 
then  and  there  played  for  money." 

FORM — CONDUCTING    BANKING    GAME. 

Wilfully  and  unlawfully  did  deal,  play,  open,  carry  on, 
and  conduct  a  certain  banking  game,  played  with  a  certain 
device,  to  wit,  a  wheel  marked  with  numbers  and  colors, 
said  game  being  then  and  there  a  banking  game  commonly 
known  as  the  "wheel  of  fortune,"  and  being  then  and  there 
played  for  money. ^° 

Note. — For  the  oflfense  of  fraudulently  obtaining  money 
by  means  of  trick  or  device  under  Section  332  of  the  Penal 
Code,  it  is  usually  sufficient  to  charge  the  defendant  with 
larceny ;  and  the  proof  can  be  made,  under  such  an  indict- 
ment, of  the  fraudulent  means  by  which  the  possession  of 
the  property  was  secured.-^ 

17  People  V.  Markham,  7  Cal.  209. 

18  Ex  parte  Harrison,  63  Cal.  299. 

10  People  V.  Sam  Lung.  70  Cal.  515;    People  v.  Gosset,  93 
Cal.  641. 

20  People  V.  Carroll,  80  Cal.  153. 

21  People  V.  Shaughnessy,  110  Cal.  598. 


CHAPTER    XXIX. 


GAMB  LAWS. 

[Penal  Code,  sees.  626-637.] 


It  is  within  the  poHce  power  of  the  state,  for  the  protec- 
tion of  the  wild  game  of  the  state,  to  prohibit  the  sale  of 
meat  of  any  wild  game  within  the  state.  Under  such  a 
law  it  is  not  material  whether  the  game  was  killed  without 
the  state,  if  it  is  sold  within.^  A  justice  court  has  no  juris- 
diction of  violations  of  the  game  law.^  Jurisdiction  is 
conferred  exclusively  on  the  Superior  Court.^ 

FORM KILLING   AND    POSSESSING   GAME. 

Between  the  ist  day  of  March  and  the  ist  day  of  Octo- 
ber of  the  year  190 — ,  unlawfully  and  wilfully  did  hunt, 
pursue,  take,  kill,  destroy,  and  have  in  his  possession  ten 
valley  quail  [or  other  bird,  naming  it]. 

FORM DESTROYING  EGGS   OR   NESTS. 

Unlawfully  and  wilfully  did  take,  gather  and  destroy  the 
eggs  and  nest  of  quail  [or  other  bird  or  fowl,  naming  it]. 

FORM KILLING    PROHIBITED    BIRDS. 

Unlawfully  and  wilfully  did  hunt,  shoot  at,  shoot,  take, 
kill  and  destroy  an  English  skylark  [or  other  bird,  naming 
it]. 

FORM — POSSESSING   PROHIBITED   BIRDS. 

Unlawfully  and  wilfully  did  buy  [or  sell,  give  away  or 
have  in  possession,  as  the  case  may  be]  an  English  skylark 
[or  other  bird,  naming  it]   the  same  not  then  and  there 

1  Ex  parte  Maier,  103  Cal.  476. 

2  Ex  parte  Anear,  114  Cal.  370. 

3  People  V.  Tom  Nop,  124  Cal.  150. 


172  CRIMINAL  LAW  AND  PROCEDURE. 

being  sold  [or  bought  or  given  away  or  had  in  possession, 
as  the  case  may  be]  for  the  purpose  of  propagation,  or  for 
any  educational  or  scientific  purpose. 

FORM — POSSESSING    OR    SELLING    GAME. 

Being  then  and  there  a  person  keeping  a  cold  storage 
warehouse,  [or  tavern,  hotel-keeper,  restaurant,  eating  house 
keeper,  or  market  man,  as  the  case  may  be]  unlawfully  and 
wilfully  did  buy  [or  sell,  expose,  offer  for  sale,  give  away 
or  have  in  his  possession,  as  the  case  may  be]  ten  quail  [or 
other  bird  or  animal,  naming  it]  between  the  —  day  of 
,  and  the  —  day  of  ,   190 — . 

FORM — USING   SHOTGUN    OF    UNLAWFUL    CALIBRE. 

Wilfully  and  unlawfully  did  use  a  shotgun  of  larger 
calibre  than  that  commonly  known   and   designated  as   a 

No,  10  gauge,  to^vit,  a  No. gauge,  for  the  purpose  of 

killing  game.* 

FORM DYNAMITING   FISH. 

That  the  said  A  B  on  or  about  the  —  day  of  , 


190 — ,  at  and  in  the  county  and  state  aforesaid,  wilfully 

and  unlawfully  did  place  and  cause  to  be  placed  in ■ 

stream,  the  same  being  then  and  there  of  the  waters  of  the 

state  of  California,  and  in  the  county  of  ,  in  said 

state,  certain  dynamite  and  gunpowder  and  other  explosive 
compound  for  the  purpose  then  and  there  of  wilfully  and 
unlawfully  killing  and  taking  fish  therein  and  therefrom, 
and  did  then  and  there  wilfully  and  unlawfully  take  and 
procure  and  kill  and  destroy  fish  therein  by  means  of  said 
expkDsives." 

GRAND  LARCENY,  see  LARCENY. 
HIGHWAY  ROBBERY,  see  ROBBERY. 

*  Ex  parte  Peterson,  119  Cal.  578. 
8  People  V.  Beach,  122  Cal.  37. 


CHAPTER    XXX. 


HOIVIICIDB. 

DEFINITION. 

Homicide  is  the  taking  of  human  life,  under  circum- 
stances from  which  the  law  implies  either  guilt  or  inno- 
cence. 

CAUSES    CONTRIBUTING    TO    DEATH. 

Whether  the  criminal  act  preceding  death  amounts  in 
law  to  a  homicide,  depends  frequently  upon  supervening 
circumstances,  over  which  the  party  inflicting  the  injury 
has  no  control  whatever,  like  the  unskilfulness  of  the  treat- 
ment, or  the  suicide  or  unruly  conduct  of  the  patient.  The 
rule  may  be  stated  thus :  If  the  harm  inflicted  is  not  of 
itself  necessarily  mortal,  whether  the  death  which  follows 
be  a  homicide  or  not,  depends  upon  whether  the  treatment 
or  other  supervening  circumstances  caused  the  death  or 
merely  contributed  to  it.  If  death  was  caused  solely  by 
such  supervening  circumstances,  it  is  not  homicide,  other- 
wise it  is.  But  if  the  harm  done  was  sufficient  in  itself 
to  cause  the  death  and  did  cause  it,  no  intervening  cause 
will  relieve  the  party  inflicting  it  from  the  responsibility 
of  homicide.^  It  is  a  homicide,  too,  though  not  necessarily 
felonious,  to  accelerate  or  hasten  the  death  of  a  person 
languishing  from  either  a  mortal  disease  or  a  mortal 
wound.  ^ 

Homicide  is  felonious,  justifiable  or  excusable.  Felonious 
homicide  is  either  murder  or  manslaughter.  But  in  order 
to  constitute  a  felonious  killing,  that  is,  either  murder  or 
manslaughter,    the    injury    inflicted    must    result    in    death 

1  People  V.  Lewis,  124  Cal.  556. 

2  People  V.  Lewis,  supra;    People  v.  Ah   Fat,   48  Cal.  61; 
People  V.  Moon,  65  Cal.  532. 


174  CRIMINAL  LAW  AND  PROCEDURE, 

within  a  year  and  a  day  from  the  date  of  its  commission, 

otherwise  death  is  conckisively  presumed  to  result  from 

natural  causes.** 

MURDER. 

DEFINITION. 

Murder  is  the  unlawful  killing  of  a  human  being,  with 
malice  aforethought,  either  express  or  implied.^ 

ESSENTIALS. 

To  constitute  the  oflFense  it  must  appear  that  the  accused 
was  of  sound  mind,  that  the  killing  was  unlawful,  and  that 
it  was  done  with  malice.*  To  say  that  the  person  killing 
must  be  of  sound  mind  is  simply  a  repetition  of  a  rule 
applicable  to  all  crimes.  The  law  presumes  every  person 
to  be  of  sound  mind  until  the  contrary  be  made  clearly  to 
appear.' 

UNLAWFUL    KILLING. 

Every  killing  is  unlawful  unkss  expressly  excused  or 
justified  by  law.  But  an  unlawful  killing  may  be  either 
murder  or  manslaughter.  The  homicide  being  shown,  it 
is  incumbent  on  the  defendant  to  prove  circumstances  in 
mitigation,  excuse  or  justification  unless  they  arise  out  of 
the  evidence  produced  against  him.  The  mere  fact  of  the 
killing  being  proved  to  have  been  done  by  the  defendant, 
and  nothing  further,  the  presumption  of  law  is  that  it  was 
malicious  and  an  act  of  murder." 

2a  People  V.  Steventon,  9  Cal.  273. 

8  People  V.  Haun,  44  Cal.  96;  People  v.  Foren,  25  Cal.  364; 
People  V.  Doyell,  48  Cal.  85.  This  is  but  an  enuncia- 
tion of  the  common  law  definition,  given  by  Coke, 
which  describes  murder  as  "where  a  person  of  sound 
memory  and  discretion  unlawfully  killeth  any  reason- 
able creature  in  being,  and  under  the  King's  peace, 
with  malice  aforethough,  either  express  or  implied." 
3  Inst.  47. 

*  People  V.  Moore,  8  Cal.   93. 

5  People  V.  Myers.  20  Cal.  518;  People  v.  Coffman,  24  Cal. 
236;   People  v.  Ferris,  55  Cal.  591. 

«  People  V.  March,  6  Cal.  541;  People  v.  Bush,  71  Cal.  601; 
People  V.  Knapp,  71  Cal.  1;  People  v.  Barry,  31  Cal.  357; 
People  V.  Miligate,  5  Cal.  127;  People  v.  Roberts,  6  Cal. 
217;  People  v.  Langton,  67  Cal.  427;  People  v.  Ah  Gee 
Yung.  86  Cal.  144. 


MURDER.  176 

MALICE. 

Malice  imports  a  wish  to  vex,  annoy  or  injure  another 
person,  or  an  intent  to  do  an  unlawful  act,  established  either 
by  proof  or  presumption  of  law.^  It  may  be  either  express 
or  implied.  It  is  express  when  there  is  manifested  a  delib- 
erate intention  unlawfully  to  take  away  the  life  of  a  fellow 
creature.  It  is  implied  when  no  considerable  provocation 
appears  or  when  the  circumstances  attending  the  killing 
show  an  abandoned  and  malignant  heart.' 

MALICE  INFERRED. 

It  seems  to  result  from  the  cases  that  if  there  be  only 
slight  or  no  provocation  and  if  it  reasonably  may  be  inferred 
from  the  circumstances  of  the  case,  that  the  party  intended 
to  kill  or  do  some  great  bodily  harm,  such  homicide  will 
be  murder.  Thus,  where  a  feeble  old  man  is  assaulted  by 
a  powerful  young  man  without  any  provocation,  and  beaten 
upon  the  head  in  a  cruel  and  unusual  manner  so  that  he 
dies,  it  shows  an  abandoned  and  malignant  heart  and  is 
murder,  though  there  was  no  evidence  as  to  character  of 
the  weapon  used."  It  will  be  seen  that  in  express  malice 
there  must  be  a  specific  intent  to  kill,  disclosed  by  the  facts 
of  the  case,  as  where  the  killing  is  by  means  of  poison,  lying 
in  wait,  or  where  antecedant  menaces  or  concerted  plans 
and  the  like  are  proven.  In  such  cases  there  is  manifestly 
a  deliberate  design  to  kill  and  malice  is  express.  But  the 
law  will  imply  malice  when  no  considerable  provocation 
appears.^"  Actual  intent  to  kill  is  not  necessary  to  estab- 
lish malice,  for  murder,  even  of  the  first  degree  may  be 
committed  in  the  perpetration  of  another  felony  when  there 
is  no  design  whatever  to  kill,^^  and  the  actual  intent  to  kill 

^  People  v.  Kerraghan,  72  Cal.  609;  People  v.  Dice,  120 
Cal.  201. 

8  People  V.  lams,  57  Cal.  116;  People  v.  Bruggy,  93  Cal. 
476;  People  v.  Dice,  120  Cal.  1S9;  People  v.  Bealoba, 
17  Cal.  389;  People  v.  Sanchez,  24  Cal.  17;  People  v. 
Foren,  25  Cal.  361;  People  v.  Doyell,  48  Cal.  96;  People  v. 
Evans,  124  Cal.  209. 

9  People  V.  Goslaw,  73  Cal.  323. 

10  People  V.  Knapp,  71  Cal.  17. 

11  People  V.  Foren,  25  Cal.  365;  People  v.  Craig,  111  Cal. 
460;  People  v.  Olsen,  80  Cal.  126;  People  v.  Doyell,  48 
Cal.  94. 


176  CRIMINAL  LAW  AND  PROCEDURE. 

may  exist  without  malice,  as  in  cases  of  manslaughter  when 
the  homicide  is  committed  upon  a  sudden  quarrel  or  heat 
of  passion.  Here,  while  the  intent  to  kill  exists,  it  is  not 
that  deliberate  and  malicious  intent  that  is  an  essential 
element  of  tlie  crime  of  murder,  and  the  law,  out  of  regard 
for  the  frailties  of  human  nature,  disregards  the  actual 
intent  and  presumes  that  the  homicide  was  without  malice." 
The  intent  to  kill  may  also  exist  when  the  homicide  is 
excusable  or  justifiable."  While  in  express  malice  an 
intent  to  kill  is  necessary,  yet  it  need  not  he  an  intent  to 
kill  a  particular  person,  as  where  A  intending  to  kill  B,  kills 
C  instead.** 

PRESUMPTION    OF    MALICE. 

The  mere  facts  of  killing  being  established,  malice  is 
presumed;  hence,  if  the  killing  be  conceded,  and  no  cir- 
cumstances in  mitigation  or  extenuation  be  shown,  the 
accused  is,  by  presumption  of  law  guilty  of  murder.*'  But 
there  is  no  presumption  as  to  the  degree,  it  being  a  ques- 
tion for  the  jury." 

If  the  attendant  circumstances  show  that  the  act  of  kill- 
ing was  done  with  malice,  it  is  murder,  otherwise  it  is  only 
manslaughter." 

Whenever  one,  in  doing  an  act  with  the  design  of  com- 
mitting a  felony,  takes  the  life  of  another,  even  accidentally, 
it  is  murder.  The  law  measures  the  act  which  is  malum  in 
se  substantially  by  the  result  produced,  though  not  contem- 
plated, as  if  specifically  intended.     In  such  cases  it  sup- 

12  People  V.  Freel,  48  Cal.  436;  People  v.  Doyell,  48  Cal.  96; 
People  V.  Bruggy,  93  Cal.  481. 

13  People  V.  Newcomer,  118  Cal.  263. 

i<  People  V.  Miller,  121  Cal.  243;   People  v.  Craig,  111  Cal. 

460;  People  v.  Foren,  25  Cal.  365. 
15  People  V.  Bushton,  80  Cal.  160;  People  v.  Boling,  83  Cal. 

380;  People  v.  Stonecifer,  6  Cal.  405;  People  v.  Miligate, 

5   Cal.    127;    People   v.    Roberts,    6   Cal     217;    People   v. 

Langton,  67  Cal.  427;    People  v.  Ah  Gee  Yung,  86  Cal. 

144;  People  v.  Bush,  71  Cal.  602;  People  v.  March,  6  Cal. 

541. 
i«  People  V.  Belencia,  21  Cal.  544;   People  v.  King,  27  Cal. 

514. 
'7  People  V.  Evans.  124  Cal.  209;   People  v.  Kerraghan.  72 

Cal.  609. 


MURDER.  177 

plies  the  intent  to  kill,  holding  the  offender  responsible  for 
the  natural  and  probable  consequence  of  his  acts.^*  If  a 
woman  not  more  than  six  weeks  advanced  in  pregnancy  be 
killed  in  an  attempt  to  produce  an  abortion  upon  her,  it  is 
murder  notwithstanding  there  was  no  intent  to  take  life." 

WANTON    RFXKLESSNESS. 

When  death  results  from  the  discharge  of  firearms 
into  a  crowd  of  persons  with  recklesss  indifference  to 
human  life,  it  is  as  much  a  murder  as  if  the  offender  had 
laid  in  wait  for  his  victim.-"  Likewise  if  the  accused  kill 
the  deceased  upon  a  public  highway  without  reason  to 
apprehend  any  other  or  greater  wrong  than  a  mere  trespass 
on  his  premises.-^  While  the  recklessness  or  unlawfulness 
of  the  act  may  be  criminal,  it  may  not  be  sufficient  to  show 
malice.^' 

RESISTING  ARREST. 

When  an  officer  is  killed  in  an  endeavor  to  arrest  a  felon 
fleeing  from  the  scene  of  his  crime,  it  is  murder.  And  it  is 
not  necessary  that  the  officer  had  a  warrant  to  make  his  kill- 
ing by  the  pursued  person  a  felony.  Neither  is  it  necessary 
that  the  resisting  person  should  be  notified  of  the  official 
character  of  the  one  attempting  to  make  the  arrest,  or 
that  he  should  be  informed  of  the  cause  of  his  arrest." 

DEGREES    IN    MURDER. 

To  constitute  murder  in  the  first  degree  the  killing  must 
be  wilful,  deliberate  and  premeditated.  A  "wilful  killing" 
is  accomplished  when  there  is  a  specific  intent  to  take  life. 
When  such  intent  is  founded  on  consideration,  it  is  delib- 
erate, and  when  the  deliberation  precedes  the  intent  it  is 
premeditated.^*  There  are  certain  kinds  of  murders  which 
carry  with  them  conclusive  evidence  of  premeditation  which 

18  People  V.  Doyell,  48  Cal.  94;  People  v.  CMsen,  80  Cal.  127; 
People  V.  Goslaw,  73  Cal.  323. 

19  Ex  parte  Wolff,  57  Cal.  94. 

20  People  V.  Bealoba,  17  Cal.  395. 

21  People  V.  Dunne,  80  Cal.  347. 

22  People  V.  Pearne,  118  Cal.  155. 

23  People  V.  Pool,  27  Cal.  573. 

24  People  V.  Pool,  27  Cal.   585. 

CRIMES--12 


178  CRIMINAL  LAW  AND  PROCEDURE. 

the  law  divides  into  two  classes.  The  first  class  includes 
those  murders  perpetrated  by  means  of  poison,  lying  in 
wait,  torture,  etc.  Here  the  means  used  is  held  to  be  con- 
clusive evidence  of  premeditation.^"^  The  second  class 
includes  murder  done  in  the  perpetration  or  attempted  per- 
petration of  burglary,  robbery,  rape,  arson,  or  mayhem. 
Here  the  occasion  is  made  conclusive  evidence  of  premedi- 
tation.*' Premeditation  is  likewise  shown  in  murders  per- 
petrated upon  one  person  while  the  death  of  another  is  con- 
templated. Here  there  is  the  specific  intent  to  kill  which 
shows  express  malice  a:nd  is  murder  in  the  first  degree.''^ 

WHEN    CIRCOMSr/VNCES    DETERMINE   DEGREE. 

As  to  murders  perpetrated  with  express  malice,  that  is 
with  a  specific  intent  to  kill,  or  in  pursuance  of  a  design 
to  commit  the  felonies  named  from  which  the  law  conclu- 
sively presumes  such  intent,  all  difficulty  as  to  question  of 
degree  is  removed.  It  is  only  in  those  cases  which  do  not 
fall  within  these  general  classes  that  the  distinction  between 
the  degrees  is  involved  in  doubt.  Here  the  law  leaves  the 
degree  to  be  determined  from  the  facts  of  each  case,**  but 
prescribes  for  the  government  of  the  deliberations  of  the 
jury  a  certain  general  definition  or  test.     To  constitute  the 

25  People  V.  Williams,  43  Cal.  349;  People  v.  Knott,  122 
Cal.  410;  People  v.  Miles,  55  Cal.  207;  People  v.  Moore, 
8  Cal.  90;  People  v.  Bealoba,  17  Cal.  345;  People  v.  San- 
chez, 24  Cal.  29;  People  v.  Foren,  25  Cal.  364;  People 
.  V.  Nichol,  34  Cal.  214;   Ex  parte  Wolff,  57  Cal.  94. 

2«  People  V.  Miller,  121  Cal.  343;  People  v.  Majors,  65  Cal, 
38;  People  v.  Keefer,  65  Cal.  233;  People  v.  Vasquez, 
49  Cal.  500;  People  v.  Bealoba,  17  Cal.  .'5!17:  Poonle  v. 
Olsen,  80  Cal.  126;  People  v.  Craig,  111  Cal.  460;  People 
V.  Doyell,  48  Cal.  94;  People  v.  Foren,  25  Cal.  364;  People 
V.  Nichol,  34  Cal.  214;  People  v.  Long,  39  Cal.  696; 
People  V.  Williams,  43  Cal.  349;  Ex  parte  Wolff,  57  Cal. 
94. 

2T  People  V.  Olsen,  80  Cal.  126;  People  v.  Foren,  25  Cal. 
364;  People  v.  Doyell,  48  Cal.  94;  People  v.  Craig,  111 
Cal.    470. 

28  People  V.  Valencia,  43  Cal.  556;  People  v.  Woody,  45  Cal. 
289;  People  v.  Gibson,  17  Cal.  283;  People  v.  Ah  Lee, 
60  Cal.  86;  People  v.  Chew  Sing  Wing,  88  Cal.  271;  People 
V.  Foren.  25  Cal.  361;  People  v.  Long,  39  Cal.  697;  People 
V.  Doyell,  48  Cal.  94;  People  v.  Olsen,  80  Cal.  126;  People 
v.  King.  27  Cal.  514;  People  v.  Belencia,  21  Cal.  544. 


MURDEU.  179 

first  degree,  the  unlawful  killing  must  be  accompanied  with 
a  clearly  deliberate  and  premeditated  intent  to  take  life, 
either  express  or  implied  by  law  from  the  facts. 
The  intent  to  kill  must  be  formed  upon  pre-existing  reflec- 
tion, and  not  upon  a  sudden  heat  of  passion  sufficient  to 
preclude  the  idea  of  deliberation.-® 

TIME     FOR     DELIBERATION. 

No  appreciable  space  of  time,  however,  need  intervene 
between  the  formation  and  the  execution  of  the  design  to 
kill.  It  is  only  necessary  that  the  act  of  killing  be  preceded 
by  a  concurrence  of  will,  deliberation,  and  premeditation,  no 
matter  how  rapidly  the  acts  of  the  mind  may  succeed  each 
other,  or  how  quickly  they  may  be  followed  by  the  act  of 
killing,  to  make  the  homicide  murder  in  the  first  degree.^" 
Deliberation  and  premeditation  mean  that  the  act  was  pre- 
conceived and  done  after  reflection.^^  If  the  design  to  kill 
existed  while  delivering  the  fatal  blow,  it  is  enough. ^^  No 
time  is  too  short  for  a  wicked  man  to  frame  in  his  mind 
a  scheme  of  murder  and  to  contrive  means  of  executing  it.*^ 

DEGREES    DISTINGUISHED. 

It  will  be  seen  from  the  foregoing  that  it  is  the  presence 
or  absence  of  premeditation  and  deliberation  that  distin- 
guishes the  degrees  of  murder.     So  that  all  murders  done 

29  People  V.  Moore,  8  Cal.  90;  People  v.  Bealoba,  17  Cal. 
395;  People  v.  Sanchez,  24  Cal.  29;  People  v.  Foren,  25 
Cal.  365;  People  v.  Nichol,  34  Cal.  214;  People  v.  Long, 
39  Cal.  696;  People  v.  Williams,  43  Cal.  349;  People  v. 
Valencia,  43  Cal.  555;  People  v.  Doyell,  48  Cal.  95;  Ex 
parte  Wolff,  57  Cal.  94;  People  v.  Hunt,  59  Cal.  435; 
People  V.  Morine,  61  Cal.  369;  People  v.  Grigsby,  62  Cal. 
48;  People  v.  Hurtado,  63  Cal.  288;  People  v.  Raten,  63 
Cal.  423;  People  v.  Hamblin,  68  Cal.  104;  People  v, 
Knapp,  71  Cal.  1;  People  v.  Williams,  73  Cal.  533;  People 
V.  Cox,  76  Cal.  285;  People  v.  Bowman,  81  Cal.  566; 
People  V.  Bawden,  90  Cal.  196;  People  v.  Gibson,  106 
Cal.  458. 

30  People  V.  Williams,  43  Cal.  344;  People  v.  Pool,  27  Cal. 
585;  People  v.  Cotta,  49  Cal.  166;  People  v.  Jarnarillo, 
57  Cal.  114;  People  v.  Nichol,  34  Cal.  211;  People  v.  Hunt, 
59  Cal.  435;   People  v.  Long,  39  Cal.  696. 

31  People  V.  Bealoba,  17  Cal.  397. 

32  People  V.  Hamblin,  68  Cal.  104;  People  v.  Doyell,  48  Cal. 
97. 

33  People  V.  Moore,  8  Cal.  93. 


•  180  CRIMINAL  LAW  AND  PROCEDURE. 

in  the  execution  of  a  design  to  commit  any  other  felony 
than  murder,  burglary,  robbery,  rape,  arson,  or  mayhem, 
and  all  done  without  deliberate  and  premeditated  malice  are 
murders  in  the  second  degree. 

MANSLAUGHTER. 
DEFINITION. 

Manslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice,  and  includes  every  felonious  homicide  which 
is  not  murder.  The  distinction  between  murder  and  man- 
slaughter is  only  in  regard  to  malice.  Malice,  either  express 
or  implied,  is  always  present  in  murder,  and  always  absent 
in  manslaughter.**     It  is  either  voluntary  or  involuntary.'^ 

VOLUNTARY   MANSLAUGHTER. 

Voluntary  manslaughter  is  an  unlawful  killing  upon  sud- 
den quarrel  or  heat  of  passion.  But  to  reduce  a  wilful 
homicide,  to  manslaughter  on  this  ground,  the  provocation 
must  be  sufficient  to  excite  an  irresistible  passion  in  a  rea- 
sonable person  of  ordinary  self  command.  It  is  only  out 
of  regard  for  human  frailty  that  the  law  will  extenuate 
murder  to  manslaughter.^"  When  the  homicide  is  com- 
mitted in  a  mutual  combat,  in  order  to  reduce  the  offense 
from  murder  to  manslaughter,  it  must  appear  that  no  undue 
advantage  was  sought  or  taken  by  defendant,  for  if  such 
was  the  case,  malice  may  be  inferred  and  the  act  of  killing 
amount  to  murder.*^  But  the  use  of  a  superior  weapon  by 
the  slayer  is  not  of  itself  sufficient  evidence  from  which 
malice  may  be  inferred.*^  In  the  absence  of  considerable 
provocation,  malice  is  implied.  If  it  be  only  slight,  the  law 
will  consider  the  act  of  killing  not  the  result  of  human 

s<  People  V.  Lamb,  17  Cal.  323;  People  v.  Freel,  48  Cal.  436; 

People  V.  Crowley,  56  Cal.  36;   People  v.  Doling,  83  Cal. 

380;  People  v.  Kerraghan.  72  Cal.  609;  People  v.  Bruggy, 

93   Cal.   482;    People  v.   Evans,   124   Cal.   209;    People   v. 

Munn,  65  Cal.  213;   People  v.  Samsels,  66  Cal.  100. 
35  People  V.  Bruggy,  93  Cal.  478;  People  v.  Peame,  118  Cal. 

15R. 
3«  People  V.  Butters,  8  Cal.  441;  People  v.  Freeland,  6  Cal. 

99;    People    v.    Freel,    48    Cal.    436;    People    v.    Bruggy. 

93  Cal.  480;  People  v.  Hurtado.  63  Cal.  288. 
•"  People  V.  Sanchez,  24  Cal.  17. 
38  People  V.  Barry,  31  Cal.  35. 


MANSLAUQHTBB. 


181 


infirmity,  but  rather  of  malice,  and  will  declare  the  homi- 
cide murder.'"'  Words  of  reproach,  however  grievious,  are 
not  of  themselves  a  sufficient  provocation,  as  a  reasonable 
man  should  exercise  patience  and  forbearance  under  insult 
and  abuse. ■""  Trespass  upon  property  unaccompanied  with 
acts  indicating  an  intent  to  commit  some  injury  by  force  is 
not  considered  a  sufficient  provocation  to  reduce  an  inten- 
tional homicide  to  manslaughter/'  And  if  a  sufficient  time 
•elapse  between  the  ]:)rovocation  and  the  homicide  to  allow 
the  blood  to  cool  and  reason  to  assert  her  sway,  it  will  be 
murder,  no  matter  what  the  provocation.*^  So,  when  the 
defendant  is  so  far  in  possession  of  his  mental  faculties  as 
to  be  capable  of  knowing  that  the  act  of  killing  was  wrong, 
the  belief  that  the  deceased  had  seduced  his  wife  will  not 
reduce  the  crime  to  manslaughter.*^  Whatever  the  provoca- 
tion may  be,  if  it  was  sought  by  the  slayer,  the  killing  will 
be  murder.** 

I  xVVOLU  xXTARY    MAM  SLAUGHTER. 

Involuntary  manslaughter  is  an  unlawful  killing  which 
is  done  in  the  commission  of  an  unlawful  act,  not  amount- 
ing to  a  felony,"  or  in  the  commission  in  an  unlawful  man- 
ner of  a  lawful  act  which  might  produce  death  ;*®  or  in  the 
commission  of  a  lawful  act  without  due  caution  and  cir- 
cumspection.*'    As  to  what  will  amount  to  an  unlawful  act 

39  People  V.  Doyell,  48  Cal.  96;  People  v.  Bruggy,  93  Cal. 
480. 

40  People  V.  Murback,  64  Cal.  370;  People  v.  Butler,  8  Cal. 
441;  People  v.  Turley,  50  Cal.  469;  People  v.  Bruggy, 
93  Cal.  480  . 

41  People  V.  Dunne,  80  Cal.  34;  People  v.  Clark,  84  Cal.  573; 
People  V.  Hecker,  109  Cal.  461. 

42  People  V.  Sanchez,  24  Cal.  17. 

43  People  V.  Hurtado,  63  Cal.  288. 

44  People  V.  Lamb,  17  Cal.  323. 

45  People  V.  Bruggy,  93  Cal.  478;  People  v.  Pearne,  118  Cal. 
156;  People  v.  Honshell,  10  Cal.  83;  People  v.  Munn, 
65  Cal.  212;  People  v.  Holmes,  118  Cal.  461;  People  v. 
Melendrez,  129  Cal.  552. 

46  People  V.  Bruggy,  93  Cal.  478;  People  v.  Pearne,  118 
Cal.  156;  People  v.  Munn  65  Cal.  212;  People  v.  Holmes, 
118  Cal.  461. 

4"  People  V.  Keefer,  18  Cftl.  638;  People  v.  Hcimes,  118  Cal. 
461;  People  v.  Melendrez.  129  Cal.  551. 


182  CBIMINAL  LAW  AND  PROCEDURE. 

has  not  been  directly  decided  in  this  state,  but  our  court 
seems  incHned  to  the  opinion,  supported  by  the  great  weight 
of  authority,  that  only  those  acts  which  are  malum  in  se 
are  within  this  term.  An  act  which  is  merely  malum  pro- 
hibitum is  not."  When  death  ensues  in  pursuit  of  an 
unlawful  design,  without  intention  to  kill,  it  will  be  mur- 
der or  manslaughter,  as  the  intended  offense  is  felony  or 
a  misdemeanor.''"  A  man  may  be  guilty  of  manslaughter 
under  some  circumstances  by  mere  carelessness.'" 
EXCUSABLE  HOMICIDE. 

Homicide  by  accident  and  misfortune  is  excusable  when 
done  in  either  of  the  following  cases : 

Lawful,  act.  In  lawfully  correcting  a  child  or  in  doing 
any  other  lawful  act  by  lawful  means,  with  usual  and 
ordinary  caution,  and  without  any  unlawful  intent.'^ 

Heat  of  passion.  When  committed  in  the  heat  of  pas- 
sion upon  any  sudden  and  sufficient  provocation,  or  upon 
a  sudden  combat,  when  no  undue  advantage  is  taken,  nor 
any  dangerous  weapon  used,  and  when  the  killing  is'  not 
done  in  a  cruel  or  unusual  manner."^  But  even  in  mutual 
combat  when  no  dangerous  weapon  is  used,  the  slayer  is 
bound  to  desist  when  his  victim  is  helpless, °^  and  the  com- 
bat must  be  sudden  and  not  in  pursuance  of  a  deliberate 
plan  or  agreement  to  fight.'** 

JUSTIFIABLE   HOMICIDE. 

Homicide  is  justifiable  when  necessarily  committed  in 
either  of  the  following  cases: 

1.  In  the  advancement  of  public  justice;  and 

2.  To  prevent  the  commission  of  crimes. 

Under  the  first  head  may  be  grouped  all  those  cases  in 
which  the  homicide  is  necessarily  committed : 

<8  People  V.  Pearne,  118  Cal.  158. 

«»  People  V.  Honshell,  10  Cal.  83;  People  v.  Munn,  65  Cal. 

214. 
80  People  V.  Keeter,  18  Cal.  637;   People  v.  Melendrez,  129 
Cal.  551. 

61  Penal  Code  195,  sub.  1;  People  v.  Bushton,  80  Cal.  162. 

62  Penal  Code  195,  sub.  2;   People  v.  Perdue,  49  Cal.  425; 
People  V.  Bushton,  80  Cal.  162. 

03  People  V.  Perdue,  49  Cal.  425. 
8<  People  V.  Sanchez,  24  Cal.  17. 


JUSTIFIABLE  HOMICIDE 


183 


1.  By  an  officer  or  person  acting  under  his  command  or 
in  his  aid.  (a)  In  obedience  to  a  judgment  of  a  com- 
petent court ;  (b)  in  overcoming  actual  resistance  to  the 
execution  of  some  legal  process,  or  in  the  discharge  of  any 
other  legal  duty;  (c)  in  retaking  escaped  or  rescued  felons; 
(d)  in  arresting  persons  charged  with  a  felony  fleeing  from 
justice  or  resisting  arrest. 

2.  By  any  person:  (a)  In  a  lawful  attempt  to  apprehend 
a  person  for  a  felony  committed;  (b)  in  lawfully  suppress- 
ing a  riot;  (c)  in  lawfully  keeping  or  preserving  the 
peace  ;°^  (d)  in  resisting  any  attempt  to  murder  any  person, 
or  commit  a  felony  or  to  do  some  great  bodily  injury  upon 
any  person;  and  (e)  in  defense  of  habitation,  property  or 
person.^" 

LAWFUL   ARREST. 

An  officer  in  making  an  arrest  has  the  right  to  use  all 
the  force  which  from  the  surrounding  circumstances  seems 
to  him,  as  a  reasonable  man,  necessary.  He  has  a  right 
to  arm  himself  and  go  armed,  and  where  the  offense  charged 
is  a  felony,  and  is  apparently  necessary  to  a  reasonable  man, 
it  is  his  right  to  kill  the  person  whom  he  is  seeking  to 
arrest,  and  it  is  his  duty  with  or  without  a  warrant  to  arrest 
one  who  has  committed  a  felony.^^  It  is  the  right  and 
is  expected  of  all  good  citizens  that  they  aid  in  the  capture 
or  arrest  of  any  person  who  has  committed  a  felony,  and 
they  have  the  same  protection  and  the  same  rights  as  an 
officer  under  the  same  circumstances."*  Resisting  arrest 
does  not  always  constitute  the  use  of  physical  force.  A 
person  may  resist  arrest  by  fleeing  from  an  officer  attempt- 
ing to  arrest  him.^" 

WHAT    IS    REASONABLE   CAUSE   FOR   ARREST. 

There  must  be  such  a  state  of  facts  as  will  lead  a  man  of 

ordinary  care  and  prudence  to  believe  or  entertain  an  honest 

• 

55  Penal  Code  196  and  197. 
5«  Penal  Code  196  and  197. 
-  57  People  V.  Adams,  85  Cal.  231. 
58  People  V.  Raten,  63  Cal.  424;    People  v.  Brooks,  131  Cal. 

311. 
5^  People  V.  Brooks,  131  Cal.  315. 


tSif  CRIMINAL  LAW  AND  PROCEDURE. 

and  strong  suspicion  that  the  person  to  be  arrested  is 
giiilty.  A  police  officer  has  the  right  without  a  warrant  to 
arrest  any  person  in  the  night  time,  whom  the  officer  has  a 
reasonable  ground  to  believe  has  committed  a  felony,"" 
And  where  a  citizen,  in  pursuit  of  a  felon,  by  mis- 
take, kills  an  innocent  person,  it  is  excusable  if  he  had 
reasonable  cause  to  believe,  and  did  in  fact  believe,  that  the 
deceased  was  the  person  who  had  committed  the  felony.®* 

DEFENSE  OF   PROPERTY   OTHER   THAN    HABITATION. 

Against  force  and  violence.  The  owner  of  property 
and  in  possession  of  the  same,  may  use  as  much  force  as  is 
necessary  in  its  defense  against  one  who  manifestly  intends 
or  endeavors  by  violence  or  surprise  to  commit  a  felony 
thereon.  In  so  doing  he  may  repel,  force  with  force  even 
to  the  extent  of  taking  life.  He  must  take  care,  however, 
that  the  degree  of  force  used  does  not  exceed  what  is,  or 
£q^pears  to  be,  necessary  to  protect  his  possession.'* 

Against  trespass.  It  is  only  in  the  prevention  of  the 
commission  of  felonies  that  killing  in  such  cases  is  justifi- 
able. A  bare  assault  without  force  or  violence  against  the 
officer  will  not  justify  homicide.*^  A  homicide  committed 
in  endeavoring  to  restrain  the  commission  of  a  mere  mis- 
demeanor is  not  justifiable."* 

defense  of  habitation. 

Invasion  of  dwelling.  A  man  is  not  authorized  to  kill 
every  invader  of  his  house.  In  defense  of  habitation,  the 
killing  can  be  justified  only  when  a  person  intends  or 
endeavors  to  enter  into  the  habitation  in  a  violent,  riotous 
or  tumultuous  manner  for  the  purpose  of  offering  violence 
to  some  person  therein.  If  the  person  taking  life  has  a 
reasonable  opportunity  so   to   do,  he  ought  to  endeavor  to 

«o  People  V.  Kilvington,  104  Cal.  92. 

"»  People  V.  Melendrez,  129  Cal.  549. 

«2  People  V.  Payne,  8  Cal.  344;  People  v.  Honshell,  10  Cal. 
88;  People  v.  Flannagan,  60  Cal.  4;  People  v.  Lewis,  117 
Cal.  193;  People  v.  Stone,  82  Cal.  36;  People  v.  Teixeria, 
123  Cal.  297;   People  v.  Campbell,  30  Cal.  312. 

«  People  V.  Hecker,  109  Cal.  461;  People  v.  Lewis,  117  Cal. 
194;  People  v.  Dunne,  80  Cal.  34. 

««  People  V.  Grimes,  132  Cal.  83. 


JUSTIFIABLE    HOMICIDE..  185 

remove  the  trespasser  without  having  recourse  to  the  last 
extremity.  The  bare  fear  that  violence  is  intended  is  not 
enough.  It  must  appear  that  the  circumstances  were  suffi- 
cient to  excite  the  fears  of  a  reasonable  man,  and  that  the 
party  killing  really  acted  under  the  influence  of  those  fears 
alone.®'' 

RicHT  TO  STAND  GROUND.  But  where  a  man  is  assailed 
in  his  own  habitation,  he  is  not  obliged  to  retreat  or  escape 
to  avoid  his  assailant,  even  though  a  retreat  may  be  safely 
made :  but  ma\-  stand  his  ground  or  pursue  his  adversary 
until  he  finds  himself  out  of  danger;  and  if  in  a  conflict  be- 
tween them  he  happens  to  kill  his  assailant  such  killing  is 
justifiable."" 

AGAINST   UNLAWFUL  ARREST. 

Every  citizen  has  the  right  to  resist  any  attempt  to  put 
illegal  restraint  upon  his  liberty,  and  he  is  justified  in  resist- 
ing such  an  arrest,  and  in  an  assault  made  in  attempting  to 
free  himself  from  unlawful  detention."^  But  a  mere  tres- 
pass upon  the  person  will  not  justify  a  homicide.***  And  a 
person  who  has  committed  a.  felony  and  flees  from  arrest  is 
not  justified  in  killing  an  officer  attempting  to  take  him.®" 

AGAINST   COMMON    ASSAULTS. 

To  justify  a  homicide  for  an  assault  it  must  appear  that 
the  danger  threatened  was  immediate  and  sufficient  to 
excite  the  fears  of  a  reasonable  person  that  the  slayer  was 
in  danger  of  receiving  great  bodily  harm,  and  he  acted 
under  the  influence  of  such  fears  and  not  in  a  spirit  of 
revenge ;  and  it  must  further  appear  that  the  degree  of 
resistance  was  not  disproportionate  to  the  nature  of  the 
injury  offered — that  the  force  used  in  repelling  the  assault 
was  not  greater  than  necessary.'" 

6s  People  V.  Walsh,  43  Cal.  449. 

<••«  People  V.  Lewis,  117  Cal.  193. 

67  People  V.  Denby.   108   Cal.   54. 

fis  People  V.  Angeles,  61  Cal.  188. 

no  People  V.  Pool,    27    Cal.    573. 

""  People  V.  Williams,  32  Cal.  280;    People  v.  Campbell,  30 

Cal.   312;    People  v.   Hurley,  8  Cal.   390;    People  v.   Don- 

guli,   92   Cal.    607. 


186  CRIMINAL  LAW  AND  PROCEDURK. 


THREATS. 


Threats,  alone,  however,  deliberately  made,  afford  no 
justification  for  a  homicide.  In  order  to  justify  the  killings 
under  such  circumstances,  it  must  appear  that,  at  the  very 
time  of  the  homicide,  the  deceased  was  doin^  some  overt 
act.  or  making  demonstrations,  from  which  the  accused 
reasonably  might  infer  a  present  intent  and  immediate  dan- 
ger of  carrying  such  threats  into  execution,  or  doings  him 
some  great  bodily  harm.  The  right  of  self  defense  always 
depends  on  a  necessity,  real  or  apparent,  of  protecting  life 
or  property.  When  the  necessity  arises  the  right  to  kill 
occurs,  but  the  right  ceases  when  the  necessity  no  longer 
exists.  The  sufficiency  of  the  overt  act  to  justify  the  belief 
that  life  is  in  danger  depends,  of  course,  upon  the  facts  of 
each  particular  case.'^*  Neither  will  abuse,  nor  imjust  accu- 
sations, give  a  legal  excuse  or  justification  for  taking  human 
life." 

COMMUNICATED    THREATS. 

While  threats  unaccompanied  by  an  overt  act  will  riot 
justify  a  homicide,  yet  they  arc  always  admissible  in  homi- 
cide cases.  Generally,  but  not  always  to  be  of  avail  to  the 
defendant  they  must  be  shown  to  have  been  communicated 
to  him  prior  to  the  killing."^  Communicated  threats  tend 
to  show  the  state  of  mind  of  the  accused  person,  the  appre- 
hension under  which  he  was  acting,  and  to  illustrate  his 
conduct  and.  motives  in  connection  with  other  facts  and  cir- 
cumstances of  the  case.  While  uncommunicated  threats  da 
not  furnish  the  same  evidence  of  the  motives  brought  to 
bear  upon  the  mind  of  the  accused,  and  are  not  admissible 
for  the  same  purpose.  But  in  all  cases  where  the  acts 
of  the  deceased  in  reference  to  the  fatal  meeting  are  of  a 
doubtful  character,  any  evidence  which  may  tend  to  show 

Ti  People  V,  Arnold,  15  Cal.  479;   People  v.  Lamb,  17  Cal. 

317;   People  v.  Pool,  27  Cal.  573;   People  v.  Wright,  45- 

Cal.   260;    People  v.  Westlake,   62   Cal.   303;    People  v. 

Tamkin,   62   Cal.  472;    People   v.   Lynch,   101   Cal.   229; 

People  V.  Scroggins,  37  Cal.  634;   People  v.  lams.  57  CaL 

115;  People  v.  Campbell,  59  Cal.  243. 
72  People  V.  Grimes,  132  Cal.  30. 
1^  People  V.  Arnold,  15  Cal.  476;    People  v.  lams,  57  CaL 

127. 


JUSTIFIABLE    HOMICIDE.  187 

that  he  sought  the  meeting  or  provoked  the  combat  is 
admissible.  And  in  this  view  threats  though  not  communi- 
cated, may  tend  to  show  animus  of  the  deceased,  and  illus- 
trate his  conduct  and  motives,  and  in  such  cases  show  which 
was  the  aggressor/'* 

MUTUAL  COMBAT. 

While  in  a  few  cases  in  this  state"  it  was  held  broadly 
that!  the  party  first  anaking  a  felonious  attack  upon  another, 
without  any  lawful  provocation,  forfeits  absolutely  all  right 
of  self  defense,  no  matter  what  turn  the  events  of  the  afifray 
may  subsequently  take,  and  to  justify  killing  by  pretense 
of  necessity,  the  accused  must  be  wholly  without  fault  in 
bringing  such  a  necessity.  But  such  is  not  the  law.  It 
is  true  that  a  party  may  not  by  his  own  lawless  acts  create 
a  necessity  for  self  defense,  and  then  by  acting  upon  such 
necessity,  slay  his  adversary  and  be  justified  by  the  law. 
But,  however,  when  the  assailant  has  really  and  in  good 
faith  endeavored  to  decline  any  further  struggle  before  the 
homicide  is  committed,  he  may  avail  himself  of  the  right  of 
self  defense. '^^ 

MAKING    KNOWN    INTENTION    TO    DECLINE    FURTHER    STRUG- 
GLE. 

The  accused  must  not  only  have  in  good  faith  endeavored 
to  decline  any  further  combat,  but  must  have  made  known 
such  intention  to  his  adversary  by  his  conduct.  To  illus- 
trate:    If  A  assaults  Bi  first,  and  upon  that  assault  B  re-as- 

71  People  V.  Campbell,  59  Cal.  248;  People  v.  lams,  57 
Cal.  120. 

T5  People  V.  Lamb,  17  Cal.  323;  People  v.  Travers,  56 
Cal.  254;  People  v.  Westlake,  62  Cal.  306;  People  v. 
Hunt,  59  Cal.  430;   People  v.  Tamkin,  62  Cal.  470. 

70  People  V.  Simons,  60  Cal.  72;  People  v.  Bush,  65  Cal. 
129;  People  v.  Nichol,  34  Cal.  211;  People  v.  Robert- 
son, 67  Cal.  646;  People  v.  Gonzales.  71  Cal.  569;  Peo- 
ple V.  Wong  Ah  Teak,  63  Cal.  544;  People  v.  Bruggy, 
93  Cal.  483;  People  v.  Button,  106  Cal.  628;  People  v. 
Hecker,  109  Cal.  451;  People  v.  Conkling,  111  Cal.  625; 
People  V.  Lewis.  117  Ca].  186.;  People  v.  Colvin,  118  CaL 
352;  People  v.  Newcomer,  118  Cal.  263;  People  v.  Scott, 
123  Cal.  434;  People  v.  Farley,  124  Cal.  594;  People  v. 
Harris,  125  Cal.  94;  People  v.  Muller,  125  Cal.  44;  People 
V.  Flannelly,  128  Cal.  83;  People  v.  Grancoii,  74  Cal.  645. 


t^  CRimHAU  LAW  AND  PBOCKDUKE. 

saults  A,  and  that  so  fiercely  that  A  cannot  retreat  to  the 
wall  or  other  )ioii  ultra  without  clanger  of  his  life,  nay, 
though  A  falls  upon  the  ground  upon  the  assault  of  B,  and 
then  kills  B,  this  shall  not  be  interpreted  to  be  self  defense. 
Though  A  was  upon  the  ground  and  in  great  danger  of  his 
life  at  the  time  he  killed  B,  still  he  was  the  assailant,  and 
at  the  time  of  the  killing  had  done  nothing  to  indicate  to  the 
mind  of  B  that  he  had  in  good  faith  withdrawn  from  the 
combat,  and  that  B  was  no  longer  in  danger.^^ 

APPARENT    DANGER, 

The  danger  must  be  apparent  and  imminent  and  the  kill- 
ing must  be  done  under  a  well-founded  belief  that  it  was 
absolutely  necessary  to  save  his  own  life  or  to  prevent  great 
bodily  injury.^*  The  belief  may  be  well  founded  although 
there  is  no  actual  danger,""  and  it  need  not  have  been 
absolutely  necessary.  It  is  enough  if  it  so  appeared  to  the 
defendant  and  under  circumstances  sufficient  to  excite  the 
fears  of  a  reasonable  man.*" 

SUFFICIENCY  OF  THE  DANGER. 

It  must  be  sufficient  not  only  to  excite  the  fears  of  a 

7T  People  V.  Button,  106  Cal.  632;  People  v.  Hecker.  109 
Cal.  45;  People  v.  Scott,  123  Cal.  430;  People  v.  Worth- 
ington,  122  Cal.  586;   People  v.  Conkling,  111  Cal.  627. 

T8  People  V.  Hurley,  8  Cal.  390;  People  v.  Westlake,  62 
Cal.  303;  People  v.  Powell,  87  Cal.  364;  People  v.  Don- 
gull,  92  Cal.  607;  People  v.  Lemperle,  94  Cal.  48;  Peo- 
ple V.  Lynch,  101  Cal.  229;  People  v.  Hecker,  109  Cal. 
460;  People  v.  Conkling,  111  Cal.  627;  People  v.  How- 
ard,  112   Cal.   135. 

78  People  V.  Dongull,  92  Cal.   607. 

«o  People  V.  O'Brien,  78  Cal.  41;  People  v.  Guidice,  73 
Cal.  228;  People  v.  Dye,  75  Cal.  113;  People  v. 
Anderson,  44  Cal.  65;  People  v.  Gonzales,  71  Cal.  577; 
People  V.  Dollor.  89  Cal.  515;  People  v.  lams,  57  Cal. 
115;  People  v.  Adams,  85  Cal.  231;  People  v.  Westlake, 
62  Cal.  303;  People  v.  Campbell,  30  Cal.  312;  People 
V.  Hyndman,  99  Cal.  1;  People  v.  Gray,  61  Cal.  180; 
People  V.  Flahave,  58  Cal.  249;  People  v.  Morine  61 
Cal.  369;  People  v.  Bruggy,  93  Cal.  483;  People  v.'  De 
Witt,  68  Cal.  587;  People  v.  Ye  Park,  62  Cal.  204-  Peo- 
ple V.  Lewis,  117  Cal.  191;  People  v.  Powell,  87  Cal. 
364;  People  v.  Raten.  63  Cal.  425;  People  v.  Turcott 
65  Cal.  126;    People  v.  Nichol,  34  Cal.  211-    People  v 

.  Newcomer,  118  Cal.  272;  People  v.  Hecker,  109  Cal  463- 
P-ople  V.  Herbert,  61  Cal    544. 


JUSTIFIABLE    HOMICIDE. 


189 


reasonable)  man,  but  the  act  must  have  been  done  under  the 
influence  of  such  fears  alone.*^  But  the  person  threatened 
is  authorized  to  act  on  appearances ;  as  where  the  attack 
is  sudden  and  the  danger  imminent,  he  may  increase  his 
peril  by  retreat ;  so  situated,  he  may  stand  his  ground  and 
slay  his  aggressor,  even  if  it  be  proved  that  he  might  more 
easily  have  gained  his  safety  by  flight. ^^ 

DUTY  TO   RETREAT. 

The  law  does  not  impose  the  duty  of  retreat  upon  one 
who,  without  fault  himself,  is  exposed  to  a  sudden  and 
felonious  attack.  The  duty  of  withdrawal  or  retreat  is 
imposed  upon  him  alone  who  is  the  first  aggressor,  or  who 
has  joined  in  a  mutual  combat.  While  at  common  law 
there  was  a  contrariety  of  opinion  upon  the  part  of  the 
writers  as  to  the  duty  of  retreat  which  contrariety  has 
found  its  way  into  the  differing  decisions  of  our  state 
courts,  this  state  has  upheld  a  defendant's  right  to  stand  his 
ground  and  meet  by  force  a  sudden  and  violent  attack.  So 
that  while  the  killing  must  be  done  under  an  absolute  neces- 
sity, actual  or  apparent,  as  a  matter  of  law  that  necessity 
is  deemed  to  exist  when  an  innocent  person  is  placed  in 
such  sudden  jeopardy  ;^^  and  a  person  so  situated  may  be 
justified  in  pursuing  and  slaying  his  adversary ;  but  the 
pursuit  must  not  be  in  revenge,  nor  after  the  necessity  of 
the  defense  has  ceased,  but  must  be  prosecuted  in  good 
faith  to  the  sole  end  of  winning  his  safety  and  securing  his 
life.«* 

PRESENT   ABILITY. 

There  must  have  been  a  present  ability  on  the  part  of  the 

81  People  V.  Ye  Park,  6z  Cal.  205;   People  v.  Williams,  32 

Cal.   280;    People  v.   Etaerson,   130   Cal.   562;    People   v. 

Bushton,  80  Cal.  162;   People  v.  Adams,  85  Cal.  231. 
8i  People  V.  IVxiles,    55    Cal.    207;     People    v.    Mitchell,    129 

Cal.    584;    People    v.    Herbert,    61    Cal.    544;    People    v. 

Gonzales,  71  Cal.  569;   People  v.  Ye  Park,  62  Cal.  240; 

People  V.  Robertson,   67   Cal.   646;    People  v.   Scott,  69 

Cal.    69. 
83  People  V.  Hecker,   109   Cal.   463;    People   v.   Lewis,   117 

Cal.  186;   People  v.  Newcomer,  118  Cal.  272;    People  v. 

Ye   Park.    62  Cal.   204. 
8*  People  V.  Hecker,  109  Cal.  463. 


190  CRIMINAL  LAW  AND  PROCEDURE. 

assailant  to  accomplish  his  criminal  design  in  order  to 
justify  the  person  assailed  in  taking  his  life.*"  The  ques- 
tion of  present  ability  is  fully  treated  under  the  title  of 
assaults. 

RIGHT    OF    SELF    DEFENSE    FOUNDED    ON    NECESSITY. 

The  right  of  self  defense  is  one  of  necessity,  and  ceases 
when  the  necessity  no  longer  exists.  Therefore  it  does  not 
admit  of  further  acts  on  the  part  of  the  assailed  party  after 
his  adversary  has  been  rendered  harmless.*" 

SEEKING    A    QUARREL. 

Self  defense  is  not  available  as  a  plea  to  a  defendant 
who  has  sought  a  quarrel  with  a  design  to  force  a  deadly 
issue  and  thus,  through  his  fraud,  contrivance  or  fault, 
create  a  real  or  apparent  necessity  for  the  killing.*^ 

KILLING  IN  A  DUEL. 

Neither  can  it  be  availed  of  as  a  defense  by  one  who  by 
an  arranged  duel,  or  by  consent,  has  entered  into  a  deadly 
mutual  combat  in  which  he  slays  his  adversary ;  for  a  man 
may  not  wickedly  or  wilfully  invite  or  create  the  appear- 
ances of  necessity  or  the  actual  necessity  which,  if  present 
to  one  without  blame,  would  justify  the.  homicide.** 

BURDEN    OF    PROOF. 

As  has  already  been  shown  herein  when  a  homicide 
is  proven,  the  defendant  must  establish  circumstances 
of  mitigation  or  justification  or  excuse ;  but  it  is  sufficient 
if  the  proof  on  the  part  of  the  prosecution  creates  a  rea- 
sonable doubt  as  to  these  matters.*®  And  it  need  not  be 
shown  by  a  preponderance  of  evidence.     The  killing  only 

85  People  V.  Lee  Kong.  95  Cal.  666. 
88  People  V.  Yokum,   118   Cal.   437. 

8T  People  V.  Roberston,  67  Cal.  646;  People  v.  Hecker,  109 
Cal.    462. 

88  People  V.  Hecker.  109  Cal.  462. 

89  People  V.  Newcomer,  118  Cal.  263;  People  v.  Powell. 
87  Cal.  350;  People  v.  Arnold,  15  Cal.  476;  People  v. 
Rodrigo.  69  Cal.  605;  People  v.  Elliott.  80  Cal.  296; 
People  V.  Ah  Kong,  49  Cal.  6;  People  v.  Lemperle,  94 
Cal.  45;  People  v.  Marshall.  112  Cal.  423;  People  v. 
Bushton,  80  Cal.  165;  People  v.  Lanagan,  81  Cal.  143; 
People  V.  Turcott  65  Cal.  129. 


JUSTIFIABLE    HOMICIDK.  191 

raises  a  presumption  that  it  was  felonious,  and  the  defend- 
ant is  only  bound  to  produce  such  evidence  as  will  create 
a  reasonable  doubt  of  his  guilt.  It  makes  no  difference 
whether  this  reasonable  doubt  is  the  result  of  evidence  on 
the  part  of  the  defendant  tending  to  show  circumstances  of 
mitigation,  or  that  would  justify  or  excuse  the  killing,  or 
from  other  evidence  coming  from  him  or  the  prosecution.®" 


90  People  V.  Powell,  87  Cal.  350;  People  v.  Marshall,  112 
Cal.  423;  People  v.  Boling,  83  Cal.  381;  People  v. 
Levine,  85  Cal.  41;  People  v.  Lane,  101  Cal.  518;  Peo- 
ple V.  Neary,  104  Cal.  374;  People  v.  Ah  Gee  Yung, 
86  Cal.  146;  People  v.  Hawes,  98  Cal.  653;  People  v. 
Anderson,  105  Cal.  34;  People  v.  Tarm  Poi,  86  Cal. 
226;  People  v.  Lanagan,  81  Cal.  143;  People  v.  West, 
49  Cal.  610;  People  v.  Elliott,  80  Cal.  296;  Peo- 
ple Flanagan,  60  Cal.  2;  People  v.  Langton,  67 
Cal.  427;  People  v.  Bushton,  80  Cal.  160;  Peo- 
ple V.  McNulty,  93  Cal.  427;  People  v.  Kibolsi,  89 
Cal.  493;  People  v.  Can-oil,  92  Cal.  572;  Penal  Code 
1105.  The  cases,  People  v.  Raten,  63  Cal.  422  and 
People  V.  Hong  Ah  Duck,  61  Cal.  388,  which  held  the 
contrary,  were  overruled  in  People  v.  Bushton,  80  Cal. 
164,  where  the  court  said  "the  well  settled  rule  that  a 
defendant  shall  not  be  convicted  unless  the  evidence 
proves  his  guilt  beyond  a  reasonable  doubt,  applies  to 
the  whole  and  every  material  part  of  the  case,  no  mat- 
ter whether  it  is  as  to  the  act  of  killing,  or  the  reason 
for  or  manner  of  its  commission."  This  same  ques- 
tion was  raised  in  People  v.  Langton,  67  Cal.  428, 
where  the  jury  had  been  instructed  that  upon  the 
proof  of  the  killing  the  law  presumed  the  defendant 
intended  to  kill,  unless  the  defendant  could  show  his 
intention  was  other  than  his  acts  indicated;  while  ad- 
hering to  the  doctrine  afterwards  enunciated  in  the 
Bushton  case,  the  court  held  that  the  words  "  unless 
the  defendant  can  show"  meant  unless  he  can  or  does 
show  from  the  whole  evidence  in  the  case  and  that 
any  other  construction  would  be  strained. 


192  CRIMINAL  LAW  AND  PROCEDURE. 

EVIDENCE. 

MOTIVE. 

A  motive  is  not  essential  to  the  proof  of  murder  and  con- 
viction may  be  had  without  it.  But  in  cases  of  circumstan- 
tial evidence,  the  presence  or  absence  of  motive  is  a  matter 
of  corroboration,  makes  other  evidence  more  or  less  persua- 
sive, and  diminishes  or  increases  the  presumption  of  inno- 
cence.^ A  morbid  thirst  for  blood  is  a  sufficient  motive.* 
Every  act  of  a  rational  human  being  is  induced  by  a  motive, 
but  when  a  crime  is  fully  established  and  its  perpetration 
fastened  upon  the  defendant,  the  motive  is  unimportant. 
While  evidence  of  the  motive  may  sometimes  be  of  assist- 
ance in  removing  doubt,  and  completing  proof  otherwise 
unsatisfactory,  it  is  never  indispensable  to  a  conviction. 
The  motives  of  human  conduct  are  so  many,  and  sometimes 
so  complex  and  obscure,  that  the  particular  motive  is  often 
incapable  of  proof  f  but  evidence  of  motive  is  as  material 
for  the  prosecution  where  the  plea  is  self  defense  as  where 
the  killing  is  denied.*  There  are  many  circumstances  which 
may  be  introduced  to  establish  it.  To  illustrate,  proof  of  a 
rivalry  between  deceased  and  defendant  as  suitors  of  the 
same  woman  :'^  or  of  the  illicit  relation  existing  between 
defendant  and  wife  of  deceased  ;**  but  to  be  admissible  it  must 
have  come  to  the  knowledge  of  the  defendant.^  Likewise 
to  prove  motive  the  people  may  show  the  existence  of  a 
family  feud,*  or  of  a  jealous  rage  of  defendant  against  his 
mistress  who  had  tricked  and  deceived  him,''  or  of  any  other 
facts  tending  to  show  the  primary  cause  of  the  killing.^" 

>  People  V.  Vereneseneckockockhoff,  129  Cal.  497;   People 

V.  Durrani,  116  Cal.  223;  People  v.  Suesser,  lb2  Cal.  631; 

People  V.  Owens,  132  Cal.  469. 
2  People  V.  McCarthy,  115  Cal.  255. 
•■'  People  V.  McCarthy,   115   Cal.   263;    People   v.   Durrant, 

116  Cal.  208;  People  v.  Vereneseneckockockhoff,  129  Cal. 

497. 
*  People  V.  Brown,   130  Cal.   591. 

5  People  V.  Cuff,   122   Cal.   589. 

6  People  V.  Brown,   130   Cal.    591. 

7  People  V.  Hill,   116    Cal.    562. 

8  People  V.  Walters,  98  Cal.  138. 

0  People  V.  Larabee.   115   Cal.   159. 
1"  People  V.  Gibson,   106   Cal.   458. 


I  EVIDENCE.  19ft 

MAPS  AND  PHOTOGRAPHS. 

It  is  a  general  rule  without  contradiction  that  where  a 
photograph  is  shown  to  be  a  faithful  representation  of  what 
it  purports  to  reproduce,  it  is  admissible  as  an  appropriate 
aid  to  the  jury  in  applying  the  evidence.  This  is  equally 
true  whether  the  photograph  be  of  persons,  things  or  places. 
And  a  photograph  of  thd  deceased,  when  shown  to  be  a  fair 
representation,  is  admissible,  although  taken  two  years 
before  her  final  disappearance.^^  So  also  maps  and  photo- 
graphs of  the  scene  of  the  homicide  are  admissible  to  show 
the  facts  surrounding  the  killing.^^  But  like  other  dia- 
grams, their  value  depends  upon  other  evidence  explaining 
them,  and  must  be  determined  by  the  jury.^^ 

EXPERT   OPINION. 

An  expert  may  express  his  judgment  as  to  the  means  and 
cause  of  death.^*  The  character  of  the  wound  is  not  a  class 
of  knowledge  which  in  its  nature  is  so  peculiarly  confined 
to  men  educated  in  the  science  of  medicine  or  surgery  as  to 
preclude  its  acquisition  by  others.  A  witness  who  is  not 
an  expert  may  describe  the  wound  upon  the  body  of  the 
■  deceased, ^^  and  when  it  is  conceded  that  the  stains  on  the 
clothing  are  blood,  may  testify  that  they  were  fresh." 
Where  there  is  a  material  inquiry  as  to  the  distance  of 
the  deceased  from  the  defendant  at  the  time  of  the  homi- 
cide, in  determining  whether  the  deceased  was  near  enough 
to  strike  the  defendant,  and  whether  the  shooting  was  done 
in  self  defense,  evidence  of  experiments  by  competent  wit- 
nesses as  to  the  farthest  distance  at  which  clothing  would 
be  powder  marked  with  a  rifle  such  as  was  used  by  defend- 
ant, is  admissible.^'^  But  the  witness  must  be  shown  to  be 
an  expert ;  a  physician  as  such   is  not  an  expert  in   such 

11  People  V.  Durrant,    n6    Cal.    213. 

12  People  V.  Phelan,  123  Cal.  551. 

13  People  V.  Crandall,    125    Cal.   13b. 

14  People  V.  Durrant,  116  Cal.  210. 

15  People  V.  Hong   Ah   Duck,   61   Cal.   388;    People  v.   Gib- 
son. 106  Cal.  476. 

16  People  V.  Loui   Tung,  90  Cal.   377. 

17  People  V.  Clark,  84  Cal.  573;   People  v.  Hawes,  98  Cal. 
648. 

CRIMES--13 


194  CRIMINAL  LAW  AND  PROCEDURE. 

matters."  An  expert  witness  who  has  examined  the 
wound  which  caused  the  death  may  give  his  opinion  as  to 
the  size  of  the  bullet  which  caused  the  wound. ^"  The  posi- 
tion of  the  body  when  the  shot  was  fired,  or  the  relative 
position  of  the  parties  at  the  time,  is  not  a  matter  of  expert 
opinion,  but  a  question  of  fact  for  the  jury  to  decide  from 
the  course  of  the  bullet  and  the  position  of  the  wound. ^^ 
The  course  of  the  bullet  does  not  indicate  the  position  of 
the  party  inflicting  the  wound.^^  The  place  of  entrance 
and  exit  of  the  bullet  may  be  shown.^^  A  witness  may 
state  the  nature  of  the  impression  of  the  sound  left  upon 
the  ear  in  determining  whether  shots  were  fired  in  open  air 
or  within  a  building,  and  whether  from  a  rifle  or  a  shot- 
gun." But  the  opinion  of  a  witness  as  to  whether  or  not  a 
third  person  would  have  seen  an  object  in  a  particular  situa- 
tion is  not  proper.  The  witness  may  testify  to  the  condi- 
tions and  situations  and  leave  the  question  of  fact  to  be 
determined  by  the  jury.^*  Neither  can  a  witness  testify  to 
his  understanding  of  the  meaning  of  words  used  by  another, 
nor  the  inference  drawn  by  him  from  a  combination  of  cir- 
cumstances tending  to  throw  light  on  a  question  of  feeling 
between  two  persons.** 

PRIOR    DIFFICULTY. 

For  the  purpose  of  showing  malice  and  ill  will  on  the 
part  of  the  defendant,  it  may  be  proved  that  the  parties  to 
the  homicide  had  had  a  difficulty  on  a  previous  occasion. 
These  matters  may  Ixi  shown  in  a  general  way,  but  it  is  not 
proper  to  enter  into  an  examination  of  them  in  detail  for  the 

18  People  V.  Lemperle,  94  Cal.  45;  People  v.  Hawes,  98 
Cal.  651  .People  v.  Hill,  116  Cal.  568;  People  v.  Smith, 
93   Cal.   445. 

18  People  V.  Wong  Chuey,   117  Cal.  629. 

20  People  V.  Hill.  116  Cal.  568;  People  v.  Smith,  93  Cal. 
447:  People  v.  Milner.  122  Cal.  171;  People,  v.  Yokum, 
118  Cal.  441;    People  v.  Farley,  124  Cal.  595. 

21  People  V.  Milner,  122  Cal.  171. 

22  People  V.  Phelan,   123    Cal.   566. 

23  People  V.  Chin  Hane,  108  Cal.  602;  People  v.  Clarke 
130    Cal.    646. 

24  People  V.  Worden,  113  Cal.  576. 
2s  People  V.  French.  69  Cal.  173. 


KVIDKNCE.  1 95 

purpose  of  determining  which  party  was  in  the  wrong. ^* 
And  evidence  of  the  previous  relation  of  defendant  with  a 
third  person,  with  whom  he  had  had  an  altercation,  though 
not  tending  to  prove  malice,  is  admissible  to  enable  the  jury 
to  understand  the  immediate  quarrel  in  which  the  homicide 
occurred.-^  But  in  such  cases  the  court  should  be  careful 
that  a  connection  is  established  between  the  two  acts.^* 
The  defendant,  however,  who  has  sought  a  quarrel  in  which 
he  killed  his  adversary,  cannot  introduce  evidence  of  a  pre- 
vious difficulty  to  show  provocation  for  his  act.^® 

RES    GESTAfi. 

The  condition  of  the  body  and  clothing  of  the  deceased 
when  found,  is  admissible.  The  production  of  the  bloody 
clothing  worn  at  the  time  by  the  victim  of  the  homicide,  and 
even  of  the  exhumed  body,  is  a  matter  of  common  practice, 
and  the  jury  may  be  permitted  to  view  them.^°  The  cloth- 
ing is  frequently  important  evidence  tending  to  prove  the 
violence  of  the  blow  and  the  course  or  direction  of  the  bullet 
or  knife.^^  The  mental  condition  of  defendant  and  the 
motives  which  prompted  the  act  are  a  part  of  the  res  gestae 
and  admissible.^^  The  flight  of  the  defendant,  when 
pointed  out  as  the  guilty  person,  is  also  admissible.^' 
And  it  is  competent  to  prove  the  circumstances  prior  and 
subsequent  to  the  homicide,  tending  to  establish  guilt,  and 
even  the  commission  of  another  crime  when  it  tends  to 
establish  the  ofifense  charged.^*  The  appearance  of  the 
defendant  shortly  after  the  homicide  may  also  be  shown.'* 

26  People  V.  Barthleman,  120  Cal.  14;  People  v.  Colvin, 
118  Cal.  351;  People  v.  Thomson,  92  Cal.  512;  People 
V.  Chaves,  122  Cal.  143;  People  v.  Kern,  61  Cal.  244; 
People  V.  Brown,   76  Cal.   573. 

27  People  V.  M'Kay,  122  Cal.  628. 

28  People  V.  Stonecifer,  6  Cal.  405. 

29  People  V.  Smith,  26  Cal.  666. 

30  People  V.  Majors,  65  Cal.  149;  People  v.  Hong  Ah  Duck, 
61  Cal.  391;   People  v.  Knapp,  71  Cal.  3. 

31  People  V.  O'Brien,  78  Cal.  43. 

32  People  V.  Costello,  15  Cal.  350. 

33  People  V.  Lock  Wing,  61  Cal.  381;  People  v.  Bushton, 
80  Cal.  60. 

34  People  V.  Ebanks,  117  Cal.  663;  People  v.  Pool,  27  Cal. 
573. 

35  People  V.  Arrighini,   122   Cal.   121. 


196  CRIMINAL  LAW  AND  PROCEDURE. 

Declarations  to  be  a  part  of  the  res  gestae  need  not  be  pre- 
cisely concurrent  in  point  of  time  with  the  principal  fact  if 
they  spring-  out  of  it  or  tend  to  explain  it,  and  are  volun- 
tary and  spontaneous,  and  are  made  at  a  time  so  near  it  as 
to  preclude  the  idea  of  deliberate  design,  then  they  are  to  be 
regarded  as  contemporaneous  and  are  admissible."  But 
statements  made  by  defendant  before  the  homicide  are  not 
included,^^  nor  are  statements  of  deceased  several  days 
before  the  homicide,  when  having  no  appreciable  bearing  on 
the  case,'*  but  declarations  made  at  the  time  of  the  assault 
are,'®  as  also  conversations  of  the  parties  to  the  assault 
immediately  afterwards.^"  Acts  of  defendant  subsequent 
to  the  homicide  cannot  be  shown  except  so  far  as  they  tend 
to  establish  the  theory  that  he  acted  in  self  defense.*^  And 
the  declarations  of  defendant  in  his  own  interest  and  not  a 
part  of  the  res  gestae,  if  made  after  the  homicide,  are  not 
admissible.*^  But  the  acts  and  declarations  of  defendant 
are  always  admissible  against  him  to  show  his  state  of 
mind.*^  But  under  the  guise  of  res  gestae  narrative  of  past 
events  cannot  be  introduced  in  evidence.  The  declarations 
to  be  admissible  as  such  must  be  necessary  incidents  of  the 
act  they  are  intended  to  explain,**  and  must  be  well  calcu- 
lated to  unfold  the  nature  and  quality  of  the  facts  they  are 
intended  to  explain,  and  so  to  harmonize  with  them  as 
obviously  to  constitute  one  transaction. *°     The  declarations 

86  People  V.  Vernon,  35  Cal.  51;   People  v.  Ah  Lee,  60  Cal. 

88. 
8T  People  V.  Wyman,  15  Cal.  70;   People  v.  Henderson,  28 

Cal.  470.       ! 
38  People  V.  Murphy,  45  Cal.  37. 
89  People  V.  Roach,  17  Cal.  298;   People  v.  Brown,  59  Cal. 

345. 
*o  People  V.  Swenson,  49  Cal.  388. 
*i  People  V.  EInglish,  30  Cal.   217.  The  court  said  it  was 

difllcult   to   see   how    subsequent   acts   could   have    any 

bearing  on  self-defense,  but  if  erroneous  was  favorable 

to  defendant. 
♦2  People  V.  Dice,  120  Cal.  189. 
♦3  People  V.  M'Kay,  122  Cal.   628. 
**  People  V.  Wong  Ark,  96  Cal.  127;   People  v.  Ehring,  65 

Cal.  135;   People  v.  Ah  Lee,  60  Cal.  85;   People  v.  Lane, 

100  Cal.  384. 
<o  People  V.  Wyman,  15  Cal.  75. 


EVIDENCE.  197 


of  the  deceased  one-half  hour  after  the  shooting  are  not  a 
part  of  the  res  gestae.  ' 


46 


CIRCUMSTANTIAL    EVIDENCE. 


This  subject  is  treated  fully  at  another  place.  It  is  suffi- 
cient here  to  say  that  circumstantial  evidence  alone  will 
sustain  a  conviction  of  murder,*^  and  a  judgment  based 
thereon  is  conclusive  on  appeal.**  It  is  perhaps  the  surest 
method  of  determining  purpose  and  motive.** 

CHARACTER   OF   DECEASED  AS   A   DANGEROUS    MAN. 

As  a  general  rule  the  slayer  may  derive  no  advantage 
from  the  character  of  the  deceased  for  violence,  provided 
the  killing  took  place  under  circumstances  that  show  he  did 
not  believe  himself  in  danger.^"  Yet  in  cases  of  doubt  as 
to  premeditation  and  malice,  or  as  to  whether  the  accused 
acted  from  a  principle  of  self  preservation,  it  is  proper  to 
admit  testimony  calculated  to  illustrate  the  motive  of  the 
accused.  A  reasonable  fear  would  repel  a  conclusion  of 
malice,  and  there  may  be  greater  reason  to  fear  an  adver- 
sary who  may  be  violent,  rash  and  bloody  minded,  than  a 
quiet  and  peaceful  citizen.^^  And  for  this  purpose  it  is 
competent  to  show  that  before  the  fatal  affray  the  defend- 
ant was  informed  that  the  deceased  Was  a  dangerous  man 
and  he  believed  him  to  be  armed. ^^  But  the  prosecution 
may  show  on  rebuttal  that  he  was  in  fact,  unarmed,"^  and 
the  fact  that  a  position  taken  by  deceased  was  not  a  move- 
ment towards  drawing  a  weapon,  but  a  marked  peculiarity 

46  People  V.  Westlake,  62  Cal.  303. 

47  People  V.  Clarke,  130  Cal.  642;  People  v.  Dodge,  30  Cal. 
448. 

48  People  V.  Ah  Jake,  91  Cal.  98;  People  v.  Durrant,  116 
Cal.  201. 

49  Peope  V.  Marshall,  59  Cal.  386;  Ex  parte  Estrado,  88 
Cal.  316. 

50  People  V.  Murray,  10  Cal.  310. 

51  People  V.  Powell,  87  Cal.  350;  People  v.  Lombard,  17 
Cal.  320;  People  v.  Stewart,  28  Cal.  396;  People  v. 
Griner,  124  Cal.  19;  People  v.  Murray,  10  Cal.  310;  Peo- 
ple V.  Edwards,  41  Cal.  641. 

52  People  V.  Powell,   87  Cal.   350. 
63  People  V.  Sehorn,  116  Cal.  509. 


198  CRIMINAL  LAW  AND  PROCEDURE. 

of  deceased."*     But  good  character  of  the  deceased  cannot 
be  shown  until  it  is  attacked.'* 

THREATS  BY  DECEASED. 

Threats  by  deceased  against  the  defendant  are  admissi- 
ble to  determine  whether  in  connection  with  the  other  facts, 
they  were  sufficient  to  excite  reasonable  fear  in  the  mind  of 
defendant,'"  also  to  determine  who  was  the  aggressor/'"* 
But  they  must  have  been  communicated  to  defendant." 
Uncommunicated  threats,  however,  may  be  shown  to  deter- 
mine who,  in  fact,  commenced  the  affray  when  the  circum- 
stances are  equivocal  of  that  fact.^*  But  threats,  even 
when  communicated,  are  not  admissible  where  the  homicide 
is  perpetrated  by  means  of  poison,  or  by  lying  in  wait,  or 
while  in  the  perpetration  of  arson,  robbery,  burglary,  etc., 
which  are  conclusive  on  their  face  of  premeditation  and 
deliberation." 

STATEMENTS   AND   DECL.\RATIONS   OF  DECEASED. 

Declarations  of  the  deceased  to  be  admissible,  must  con- 
stitute a  part  of  the  res  gestae  or  be  made  in  extremis,  or 
made  against  interest.^*'  Thus  declarations  of  the  deceased 
out  of  the  presence  of  the  accused  are  not  admissible;*^  such 
as  a  declaration  of  fear  of  being  murdered  by  defendant," 
or  that  he  did  not  mean  to  assault  the  defendant.®^     But 

64  People  V.  Grimes,  132  Cal.  34. 

65  People  V.  Powell,  87  Cal.  350. 

B6  People  V.  Tamkin,  62  Cal.  468;  People  v.  Thomson.  92 
Cal.  511;  People  v.  Travis.  56  Cal.  251. 

86a  People  V.  Travis,  56  Cal.  251;  People  v.  Thomson.  92 
Cal.  511;  People  v.  Tamkin,  62  Cal.  468;  People  v. 
Alivtre,  55  Cal.  263;    People  v.   Carlton,  57  Cal,  85. 

8T  People  v.  Farley,  124  Cal.  594;  People  v.  Arnold,  15 
Cal.  476;  People  v.  lams,  57  Cal.  115;  People  v.  Hender- 
son, 28  Cal.  466;   People  v.  Alivtre,  55  Cal.  264. 

68  People  v.  Scoggins,  37  Cal.  676;  People  v.  Alivtre,  5$ 
Cal.  265;  People  v.  Carlton,  57  Cal.  85;  People  v.  Thom- 
son, 92  Cal.  511. 

89  People  V.  Taing,  53  Cal.  602. 

•0  People  V.  Carkhuff,  24  Cal.  641;  People  v.  Carlton,  57 
Cal.  84;  People  v.  Taylor,  59  Cal.  648;  People  v.  Irwin, 
77  Cal.  500;    People  v.  Gress,  107  Cal.   463 

«i  Peop"e  v.  Daily,  59   Cal.  600. 

«2  People  V.  Irwta,  77  Cal.  494. 

«3  People  V.  Carlton.  57  Cal.  83. 


I 


EVIDKNCK.  199 

where  made  eo  instanti  the  firing  of  the  fatal  shot,  although 
out  of  presence  of  defendant,  are  admissible.***  The  decla- 
rations of  the  deceased  at  the  time  of  procuring  the  weapon 
are  a  part  of  the  res  gestae,  and  will  be  admitted  to  illustrate 
the  transaction."^  They  are  never  proper,  however,  to 
show  malice,  deliberation  or  motive.®* 

THREATS  BY  DEFENDANT. 

Threats  made  by  the  defendant  against  the  deceased  are 
admissible  to  show  malice,  and  thereby  increasing  the 
probability  that  he  committed  the  ofifense.  The  competency 
of  such  evidence  is  not  affected  by  lapse  of  time,  although 
it  may  be  impaired  thereby.®^  It  is  immaterial  that  the  wit- 
ness cannot  relate  all  of  the  conversation  in  which  the  threat 
occurred,  if  he  gives  the  substance  thereof.®*  Neither  is 
the  indefiniteness  of  the  threats  any  reason  for  excluding 
the  testimony.®^  The  defendant  will  not  be  allowed  to 
explain  his  threats.^"  Threats  against  others  than  the 
deceased  are  not  admissible  except  when  the  circumstances 
show  some  connection  with  the  injury  inflicted  on  the 
deceased. '^^  It  is,  however,  competent  to  prove  a  broad 
threat  by  defendant  against  the  whole  family  of  deceased,^' 
but  a  threat  against  a  brother  is  not  admissible.''^  A  threat 
against  a  witness  may  also  be  shown,''*  but  to  be  admissible 
it  must  have  been  communicated.'''*  And  threats  made  pre- 
vious to  a  reconciliation  may  be  shown,  but  their  effect  as 
evidence  depends  on  whether  the  reconciliation  on  the  part 
of  the  defendant  was  in  good  faith  or  not.''® 

64  People  V.  Wong   Ah    Foo.    69    Cal.    180. 

«5  People  V.  Arnold,  15  Cal.  476. 

06  People  V.  Shuttuck,  109  Cal.  673. 

6"  People  V.  Cronin,  34  Cal.  191;  People  v.  Hong  Ah  Duck, 

61  Cal.   390;    People  v.   Chaves,   122   Cal.   143;    People  v. 

Scoggins,   37  Cal.   676;    People   v.   Carlton,   57  Cal.   85. 

68  People  V.  Dice,  120  Cal.  189. 

69  People  V.  Craig,  111  Cal.  466. 

70  People  V.  T.ynch,   101   Cal.   229. 

71  People  V.  Be7y.  67  Cal.  223. 

72  People  V.  Gross,  123  Cal.  389;   People  v.  Craig,  111  Cal. 
460. 

73  People  V.  Bezy,  67  Cal.  223. 

74  People  V.  Chin  Hane,  108  Cal.  597. 

75  People  V.  Powell.  87  Cal.  348. 

76  People  V.  Hyndman,  99  Cal.   1. 


aOO  CRIMINAL  LAW  AND  PROCEDURE. 

DYING  DECLARATIONS. 

There  are  several  reasons  for  the  admissibility  of  hear- 
say testimony,  in  the  shape  of  dying  declarations,  but  the 
most  substantial  ground  upon  which  it  can  be  placed  is  that 
of  necessity.  While  the  condition  of  the  person  making  the 
declaration  under  the  sense  of  impending  dissolution  may 
compensate  for  the  want  of  an  oath,  it  can  never  make  up 
for  want  of  cross-examination.'^'  But,  notwithstanding 
this,  such  declarations  are  universally  held  to  be  admissi- 
ble." --3^is  species  of  testimony  should  always  be  received 
with  greatest  caution,  and  too  much  care  cannot  be  observed 
by  the  court  in  scrutinizing  the  primary  facts  upon  which 
its  admissibility  is  grounded.  No  person  is  entirely  exempt 
from  a  disposition  to  excuse  and  justify  his  own  conduct, 
or  to  inflict  vengeance  upon  one  at  whose  hands  he  has 
suffered  a  grievous  wrong;  and  in  the  eye  of  the  law,  this 
proclivity  is  presumed  to  be  overcome  and  silenced  only  by 
the  presence  of  almost  immediate  death. ^* 

When  admissible.  It  is  therefore  essential  to  their 
admissibility  that  they  be  made  under  a  sense  of 
impending  death ;  and  such  proof  must  be  made 
as  a  preliminary  to  their  introduction,  but  objec- 
tion to  want  of  such  preliminary  proof  is  waived  if 
not  specifically  urged.***     The  statements  of  the  deceased 

11  People  V.  Taylor,  59  Cal.  640;    People  v.  Glenn,  10  Cal. 

37;  People  v.  Lawrence,  21  Cal.  372. 
T9  People  V.  Ah  Len,  98  Cal.  133;  People  v.  Lee,  17  Cal.  76; 

People  V.  Vernon,  35  Cal.  49;   People  v.  Ybarra,  17  Cal. 

166;   People  v.  Yokum,  118  Cal.  437;  People  v.  Sierp,  116 

Cal,  249;   People  v.  Farmer,  77  Cal.  1. 
78  People  V.  Sanchez,    24   Cal.    24;    People   v.    Hodgdon,   56 

Cal.  76;   People  v.  Taylor,  59  Cal.  646. 
80  People  V.  Owens,  123  Cal.   482;   People  v.  Gray,   61  Cal. 

164;   People  v.  Lee  Sare  Bo.  72  Cal.  625;   Peoole  v.  Fuh- 

rig,  127  Cal.  412;  People  v.  Bemmerly.  87  Cal.  117;  People 

V.  Ah  Len,  98  Cal.  133;  People  v.  Carkhuff,  24  Cal.  640; 

People  V.  Lee,  17  Cal.  76;  People  v.  Vernon,  35  Cal.  49; 

People  V.  Ah  Dat,  49  Cal.  652;   People  v.  Taylor.  59  Cal. 

649;    People  v.  Sanchez,  24  Cal.  17;   People  v.  Hodgdon, 

55    Cal.    76;    People   v.    Hawes,    98    Cal.    648;    People    v. 

Ramirez,    73    Cal.    404;    People    v.    Ybarra,    17    Cal.    166; 

People  V.     Yokum,   118   Cal.   440;    People  v.   Farmer,   77 

Cal.  1;  People  v.  Sierp.  116  Cal.  249. 


EVIDENCE.  201 

must  show  that  he  was  impressed  with  a  sense  of  impend- 
ing death,  and  that  he  really  believed  that  the  finger  of 
death  was  upon  him.  It  is  only  under  the  solemnity  of 
such  an  occasion  that  his  declarations  are  rendered  compe- 
tent. All  hope  of  recQvery  must  have  left  him.^^  If  the 
deceased  had  the  slightest  hope  of  recovery  at  the  time  of 
making  the  declaration  it  is  not  admissible  for  any  purpose. 
He  must  have  believed  himself  in  such  extremity  that  every 
hope  of  the  world  was  gone.^-  But  the  declaration  need 
not  state  in  terms  that  it  is  so  made,  if  there  is  sufficient 
proof  aliunde  the  written  declaration  of  that  fact.®^  It  is 
enough  if  it  satisfactorily  appear,  in  any  mode,  that  they 
were  made  under  that  sanction ;  whether  it  be  directly 
proved  by  express  language  of  the  declarant,  or  be 
inferred  from  his  evident  danger,  or  the  opinions  of  the 
medical  or  other  attendants,  stated  to  him,  or  from  his  con- 
duct, or  other  circumstances  of  the  case,  all  of  which  are 
resorted  to,  in  order  to  ascertain  the  state  of  the  declarant's 
mind.®*  The  belief  may  also  be  shown  by  final  preparations 
for  death,  by  taking  leave  of  friends  and  by  seeking  the 
consolations  of  religion  and  the  last  offices  of  the  church.®* 
Each  witness  need  not  definitely  fix  the  belief  of  the  person 
that  death  was  imminent.  The  sense  of  death  may  be 
shown  by  one  and  the  declaration  by  another.®®  A  sense  of 
death  is  not  shown  when  the  statement  is  written  by  a 
stenographer  without  any  request  from  the  deceased.®^  The 
declarations  need  not  be  in  writing,®®  and  even  when  written 

81  People  V.  Hawes,  98  Cal.  648;  People  v.  Samario,  84  Cal. 
485;  People  v.  Ramirez,  73  Cal.  403;  People  v.  Lee  Sare 
Bo,  72  Cal.  625;  People  v.  Taylor,  59  Cal.  640;  People 
V.  Gray,  61  Cal.  175. 

82  People  V.  Ah  Dat,  49  Cal.  652;  People  v.  Fuhrig,  127 
Cal.  412;  People  v.  Bemmerly,  87  Cal.  117;  People  v. 
Hodgdon,  55  Cal.  72;  People  v.  Sanchez,  24  Cal.  17; 
People  V.  Taylor,  59  Cal.  645. 

83  People  V.  Fong,  Ah  Sing,  70  Cal.  8;  People  v.  Bemmerly, 
87   Cal.   117. 

M  People  V.  Taylor,  59  Cal.  640;  People  v.  Gray,  61  Cal. 
164;    People  v.  Lee  Sare  Bo,  72  Cal.  625. 

85  People  V.  Sanchez,  24  Cal.  25. 

86  People  V.  Garcia,  63  Cal.  19. 

8T  People  V.  Fuhrig,    127   Cal.   412. 
«8  People  V.  Yckura.  118  Cal.   440. 


202  CRIMINAL  LAW  AND  PROCEDURE. 

declarations  are  admitted,  it  is  permissible  to  admit  oral 
declarations  of  the  same  import  made  at  a  different  time.** 
They  are  not  rendered  incompetent  by  the  fact  of  a  lack  of 
religious  belief  on  the  part  of  the  deceased.****  Nor  can  the 
statement  be  rejected  because  the  deceased  refused  to  answer 
further,  saying  that  he  was  a  dying  man.**^  Oral  declara- 
tions are  admissible  even  though  considerable  time  elapsed 
between  making  them  and  the  death,  and  although  a  written 
statement  is  also  in  evidence.''-  The  re-affirmance  of  a  state- 
ment previously  made,  at  the  time  when  all  hope  is  gone, 
is  admissible.  And  if  the  deceased  had  a  clear  recollection 
of  it,  it  need  not  be  read  again. "^  The  statement  is  not 
rendered  incompetent  by  reason  of  the  fact  that  it  is  contra- 
dicted by  evidence  of  statements  subsequently  made  by 
deceased."* 

As  TO  wii.vr  ADMissiuLii.  The  declarations  must  relate 
to  and  form  a  part  of  the  res  gestae;  in  other 
words,  such  declarations  must  be  upon  such  matters  only 
as  the  deceased  might  have  testified  to  had  he  been 
alive  at  the  time  of  the  trial, "^  or  have  reference  to  the  cir- 
cumstances of  the  death  or  be  made  against  interest.®^  No 
expressions  of  opinion  by  the  deceased,"'  nor  statements 
relating  to  former  distinct  transactions,  are  admissible.®* 
The  entire  context  of  a  declaration  must  be  given.®'  Dec- 
larations of  the  deceased  after  the  shooting  are  not  admissi- 
ble.^**"    Where  a  statement  was  taken  down  by  a  reporter  in 

80  People  V.  Glenn,  10  Cal,   33. 

90  People  V.  Sanford,  43  Cal.  29;  People  v.  Chin  Mook  Sow, 

51  Cal.  599. 
•1  People  V.  Chin  Mook  Sow,  51  Cal.  600. 
»2  People  V.  Vernon,  35  Cal.  49. 
03  People  V.  Crews,  102  Cal.  174. 
n<  People  V.  Lawrence,  21   Cal.   368. 

05  People  V.  Taylor,  59  Cal.  640;   People  v.  Fong  Ah  Sing, 
70  Cal.  9;  People  v.  Wasson,  65  Cal.  539;  People  v.  Lan- 

agan,  81  Cal.  144;   People  v.  Hall,  94  Cal.  599;   People  v. 

Wong  Chuey,  117  Cal.  629. 
00  People  V.  Carkhuff,  24   Cal.   640. 

07  People  V.  Wasson,  65  Cal.  538. 

08  People  V.  Fong  Ah  Sing,  64  Cal.  256. 
00  People  V.  Fong  Ah  Sing,  70  Cal.  8. 
J""  People  V.  Westlake,  62   Cal.   203. 


EVIDENCE.  203 

shorthand  by  question  and  answer,  written  out  at  length, 
read  and  assented  to  by  the  deceased,  who  signed  and  swore 
to  it,  it  is  admissible.^"^  It  is  admissible  for  the  defendant 
even  though  the  deceased  might  have  been  mistaken  as  to 
the  facts;  its  weight  is  a  question  for  the  jury."^  And 
where  not  admissible,  the  error  is  cured  when  the  defendant 
afterwards  proves  the  same  facts  by  his  own  witnesses/*'' 

OTHER   EVIDENCE. 

Non-killing  by  another  may  be  shown  when  the  evidence 
conclusively  proves  that  either  the  defendant  or  some  other 
person  must  have  done  the  murder.  The  latter  may  testify 
that  he  did  not  do  it.^''*  And  it  is  open  to  the  accused  to 
prove  that  the  crime  was  committed  by  some  one  else,  for 
the  purpose  of  relieving  himself  from,  its  responsibility,  and 
such  proof  is  admissible  even  though  the  person  to  whom 
the  crime  is  thus  charged  has  been  acquitted  thereof.^"'*  It 
is  proper  for  the  prosecution  to  show  that  the  articles  found 
in  the  defendant's  possession  belonged  to  the  deceased  for 
the  purpose  of  connecting  him  with  the  murder.^"**  But  it 
is  not  competent  to  put  in  evidence  letters  or  communica- 
tions, found  on  the  person  of  the  deceased  after  his  death^°^ 
unless  they  be  shown  to  have  come  from  the  defendant.^**" 
A  pistol  found  on  a  co-conspirator  may  be  shown  to  be  the 
one  purchased  by  the  defendant  for  the  purpose  of  con- 
necting him  with  the  crime,^""  but  a  club  unidentified  is  not 
admissible.^^"  But  weapons  not  in  evidence  may  be  exhib- 
ited to  the  jury  when  no  objection  is  made  thereto."^  A 
dressmaker's  form,  may  be  draped  with  the  clothing  of  de- 

101  People  V.  Brady,    72    Cal.    490. 

102  People  V.  Southern,  120  Cal.  645. 

103  People  V.  Montgomery,  53  Cal.  576;   Peop'e  v.  Ketchum, 
73  Cal.  638. 

104  People  V.  Clarke,    130    Cal.    646;    People    v.    Van    Horn^ 
119  Cal.  328. 

105  People  V.  Mitchell,   100   Cal.   328. 

106  People  V.  Smith,  106  Cal.  74. 

107  People  V.  Van  Horn,   119   Cal.   323. 

108  People  V.  Worthington,   115  Cal.   242. 
if^o  People  V.  Winters,   125   Cal.  325. 

110  People  V.  Hill,   123  Cal.   571. 

111  People  V.  Ccx,  76  Cal.  281. 


204  CKIMINAL  LAW  AND  PROCEDURE. 

ceased  already  in  evidence  to  represent  the  figure  of 
deceased.'^-  TIk'  warrant  of  arrest  may  be  intro- 
duced for  the  purpose  of  showing  that  the  deceased 
was  one  of  a  posse  comitatus  to  assist  in  arresting  the 
defendant  for  another  crime,"^  and  the  purchase  and  pos- 
session of  poison  may  be  shown  for  the  purpose  of  proving 
malice  and  the  intention  of  the  defendant  towards  the 
deceased  person  to  whom  it  was  administer£d.^^*  The 
defendant  will  not  be  permitted  for  the  purpose  of  moving 
the  jury  to  compassion  to  show  the  ages  of  his  children.^^* 

INTOXICATION. 

As  has  been  shown,  drunkenness,  while  no  excuse  for 
crime,  may  sometimes  be  admitted  in  evidence.  It  is  proper 
evidence  to  show  absence  of  motive,^  or  of  a  specific  intent, 
where  such  an  intent  is  an  element  of  the  crime,^  or  a  want 
of  premeditation  in  determining  the  degree  of  the  crime.' 
But  as  between  murder  in  the  second  degree  and  man- 
slaughter, it  can  form  no  legitimate  matter  of  inquiry,*  and 
it  is  immaterial  when  the  charge  is  involuntary  man- 
slaughter without  due  caution  and  circumspection. °  In  all 
cases  it  should  be  received  with  great  caution.*^ 

"2  People  V.  Durrant,  116  Cal.  179. 
"3  People  V.  Brown,  59  Cal.  345. 
"4  People  V.  Cuff,  122  Cal.  589. 
116  People  V.  Dice,  120  Cal.  189. 

1  People  V.  Kloss,  115  Cal.  576. 

2  People  V.  Blake,  65  Cal.  275;  People  v.  Fellows,  122  Cal. 
239;  People  v.  Harris,  29  Cal.  679;  People  v.  Gordan,  103 
Cal.  568;  People  v.  Marseiler,  70  Cal.  98. 

8  People  V.  King,  27  Cal.  515;   People  v.  Langton,  67  Cal. 

429;  People  v.  Vincent,  95  Cal.  428;  People  v.  Williams, 

43   Cal.   352;    People   v.    Miller,   114   Cal.   10;    People   v. 

Franklin,   70   Cal.   641;    People  v.    Nichol,   34   Cal.   211; 

People  V.  Morrow,  60  Cal.  147;   People  v.  Blake,  65  Cal. 

277;    People  v.  Belencia,  21  Cal.  544;   People  v.  Harris, 

29  Cal.  683;   People  v.  Fellows,  122  Cal.  239;    People  v. 

Gordan,  103  Cal.  576;  People  v.  Jones,  63  Cal.  168;  People 

V.  Soto,  63  Cal.  165;  People  v.  Ferris,  55  Cal.  588. 
*  People  V.  Langton,  67  Cal.  427;   People  v.  Lane,  100  Cal. 

379;  People  v.  Nichol,  34  Cal.  211. 
6  People  V.  Pearne,  118  Cal.  151. 
8  People  V.  Lewis,  36  Cal.  531;   People  v.  Vincent    95  Cal. 

425;  People  v.  Fellows,  122  Cal.  239. 


EVIDENCE.  206 


CORPUS    DELICTI. 


It  is  very  seldom  that  a  conviction  occurs  without  posi- 
tive proof  of  the  corpus  delicti,  either  by  eye-witnesses  of 
the  homicide,  or  the  subsequent  discovery  of  the  body ;  and 
while  the  general  rule  is  clearly  laid  down,  yet  there  are 
exceptions  as  when  the  body  is  disposed  of  by  fire,  or  boiled 
in  potash,  or  dissolved  in  acids,  rendering  it  impossible  that 
it  should  ever  be  produced.  It  is  clear  that  in  such  cases 
the  corpus  delicti  may  be  proved  by  circumstances  or  infer- 
entially."    There  must  be  proof  of  some  kind  of  the  death.'"- 

VENUE. 

It  is  a  general  rule  that  venue  must  be  proved  in  all 
cases  as  laid,  but  persons  who  commit,  in  whole  or  in  part, 
any  crime  in  this  state,  are  punishable  here,^  exactly  in  the 
same  way,  in  the  same  courts,  and  under  the  same  proced- 
ure, as  if  the  crime  was  committed  entirely  within  this 
state.  Consequently,  a  person  who  sends  poisoned  candy 
by  mail  in  this  state,  with  intent  to  take  the  life  of  a  person 
residing  in  another  state,  who  dies  there,  from  the  effects 
of  the  poison  so  sent,  is  guilty  of  murder  committed  in  part 
in  the  state,  and  is  punishable  under  the  laws  of  the  state.' 

'  PENALTY. 

Murder  in  the  first  degree  is  punishable  by  death,  or  con- 
finement in  the  state  prison  for  life,  at  the  discretion  of  the 
jury  trying  the  cause.^°  The  verdict  must  specify  the 
degree  of  which  the  defendant  is  convicted.^^  And  if  the 
jury  find  a  verdict  of  murder  in  the  first  degree,  they  have 
the  absolute  discretion  of  determining  whether  the  punish- 
ment shall  be  death  or  only  inprisonment  for  life.  If  the 
verdict  is  silent  as  to  penalty  the  court  must  inflict  the  capi- 

7  People  V.  Alviso,  55   Cal.   230. 

7a  People  V.  Callego,  133  Cal.  295. 

8  Penal  Code  27. 

9  People  V.  Botkin,  132  Cal.  231. 

10  Penal  Code  190. 

11  People  V.  O'Neil,  78  Cal.  388;  People  v.  Travers,  73  Cal. 
580;  People  v.  Jefferson,  52  Cal.  452;  People  v.  Lee- 
Yune  Chong,  94  Cal.  386;  People  v.  Campbell,  40  Cal. 
129;  People  v.  Marquis,  15  Cal.  38. 


206  CRIMINAL  LAW  AND  PROCEDURE. 

tal  punishment.'^  Upon  a  plea  of  guilty  the  court  shall  de- 
termine the  punishment.'^  Murder  in  the  second  degree  is 
punishable  by  imprisonment  in  the  state  prison  not  less  than 
ten  years.'*  The  court  has  power  to  impose  life  imprison- 
ment on  a  conviction  of  murder  of  the  second  degree."^ 
Manslaughter  is  punishable  by  imprisonment  in  the  state 
prison  not  exceeding  ten  years.'^* 

INDICTMENT. 

The  code  has  abolished  all  the  refinements  and  techni- 
calities of  criminal  pleading  at  common  law,  and  has  pro- 
vided plain  and  simple  rules  by  which  to  determine  the  suffi- 
ciency thereof.  In  an  indictment  for  murder,  besides  the 
formal  commencement  and  ending  prescribed  by  the  code, 
and  the  allegation  of  venue,  the  other  issuable  facts  to  be 
alleged  are  (i)  the  name  of  the  defendant,  (2)  a  killing 
with  malice  aforethought,  (3)  the  name  of  the  deceased 
and  (4)  the  time  of  the  commission  of  the  act.  These  are 
the  essential  facts,  the  other  facts  such  as  the  means 
employed,  the  nature  and  extent  of  the  wound,  etc.,  are  sim- 
ply evidence  of  these  ultimate  facts.^^  As  has  been  seen, 
the  distinction  between  murder  and  manslaughter  is  the 
presence  or  absence  of  malice.  An  indictment  charging 
murder  also  includes  manslaughter.^^  It  is,  of  course,  nec- 
essary to  allege  the  death  of  the  person  named  in  the  indict- 
ment," but  it  is  a  sufficient  allegation  of  this  fact  to  state 
that  the  defendant  "  did  kill  and  murder  "  without  stating 
the  infliction  of  a  mortal  wound  from  which  the  deceased 

12  People  V.  Leary,  105  Cal.  486;  People  v.  Kamaunu,  110 
Cal.  609;  People  v.  Bawden,  90  Cal.  198;  People  v.  Olsen, 
80  Cal.  128;  People  v.  French,  69  Cal.  179;  People  v.  Brick, 
68  Cal.  190;  People  v.  Murback,  64  Cal.  369;  People  v. 
Jones,  63  Cal.  168;  People  v.  Welch,  49  Cal.  174. 

13  In  re  Brown,  32  Cal.  49;  Penal  Code  190. 

1*  People  V.  Brooks,  131  Cal.  311;    Penal   Code  190. 

16  People  V.  Brooks,  131  Cal.  311. 

158.  Penal  Code  193. 

16  People  V.  King,   27   Cal.    510;    People  v.    Cronin,   34   Cal. 

191;   People  v.  Murphy,  39  Cal.  52;    People  v.  Davis.  73 

Cal.  357. 
IT  People  V.  Dolan,  9  Cal.  584;   People  v.  Pearne,  118  Cal. 

157. 
18  People  V.  Crenshaw,  46  Cal.  66. 


EVIDENCE.  207 

died.^®     The  name  of  the  deceased  must  be  alleged,  but  he 

may  be  described  by  the  name  by  which  he  was  commonly 
known. ^"  An  error  .in  the  middle  name  is  immaterial,''^ 
for  the  name  is  used  only  for  the  purpose  of  identification." 
It  is  not  necessary  as  at  common  law  to  allege  that  the 
deceased  person  was  a  human  being  for  the  name,  which 
is  always  necessary  to  be  alleged  in  the  indictment,  imports 
that  fact.-^  The  time  of  the  death  may  be  set  out  in  order 
that  the  court  may  be  informed  whether  the  death  occurred 
within  a  year  and  a  day  from  the  commission  of  the  act.^* 
This  requirement  is  merely  a  rule  of  evidence.  Unless  the 
party  dies  within  that  time  there  can  be  no  conviction. ^°  It 
will  be  a  sufficient  allegation  of  time,  however,  if  it  can  be 
determined  from  the  facts  alleged  that  death  really  occurred 
within  the  year  and  a  day,  even  though  it  be  not  directly 
alleged.^''  The  place  of  the  homicide  must  be  averred  to  fix 
the  venue. ^"  There  need  be  no  allegation  of  the  manner  or 
means  of  killing..  The  ultimate  fact  is  the  unlawful  killing 
of  a  human  being  with  malice  aforethought,  and  the  means 
by  which  it  is  accomplished  is  only  evidence  of  that  fact. 
No  particular  mode  or  means  are  necessary  to  constitute  the 
offense.-*     The  manner  in  which  the  weapon  was  loaded  is 

19  People  V.  Sanford,  43  Cal.  29. 

20  People  V.  Freeland,  6  Cal.  96;  People  v.  McNulty,  93  Cal. 
445. 

21  People  V.  Lrockwood,  6  Cal.  206. 

22  People  V.  Dick,  37  Cal.  280;  People  v.  Leong  Sing,  77 
Cal.  117. 

-•  People  V.  McNulty,  93  Cal.  445;  People  v.  Freeland,  e 
Cal.  98. 

24  People  V.  Aro,  6  Cal.  210;  People  v.  Wallace,  9  Cal.  31; 
People  V.  Steventon,  9  Cal.  274;  People  v.  Dolan,  9  Cal. 
576. 

25  People  V.  Murphy,  39  Cal.  55. 

26  People  V.  Nichol,  34  Cal.  211;  People  v.  Sanford,  43  Cal. 
31;    People  v.  Cronin.  34  Cal.  191. 

27  People  V.  Wallace,  9  Cal.  31.  . 

28  People  V.  Steventon,  9  Cal.  274;  People  v.  Ybarra.  17 
Cal.  170;  People  v.  Cronin,  34  Cal.  191;  People  v.  Mur- 
phv,  39  Cal.  55;  People  v.  Weaver,  47  Cal.  107;  People 
V.  King,  27  Cal.  511;  People  v.  Hong  Ah  Duck,  61  Cal. 
387;  People  v.  Davis,  73  Cal.  357;  People  v.  Hyndman, 
99  Cal.  3. 

"Under   the   pretense    of    informinfr   the   defendant   of 
the  nature  of  the  charge  against  which  he  was  called 


208  CRIMINAL  LAW  AND  PROCEDURE. 

likewise  immaterial  f^  also  the  nature  and  extent  of  the 
wound.'"  The  indictment  need  not  charge  the  degree  of 
murder.  It  is  not  the  province  of  the  grand  jury  but  the 
trial  jury  to  determine  the  question  of  the  degree  of  which 
the  defendant  is  guilty.'^  But  there  is  no  impropriety  in  so 
doing.*''  Malice  aforethought  is  a  necessary  ingredient  of 
murder  and  consequently  must  be  alleged  in  some  manner,*' 
but  it  need  not  be  alleged  in  those  words,  it  is  sufficient 
if  equivalent  words  are  employed.'*  Thus  the  allegation 
that  the  murder  was  deliberate  and  premeditated  is  equi- 
valent to  an  allegation  of  malice  aforethought.'^  And  it 
need  not  be  alleged  that  it  was  deliberate,  if  it  is  alleged 
that  it  was  done  with  malice  aforethought.'®  The  indict- 
ment is  always  sufficient  if  it  be  in  the  language  of  the 
statute,  and  the  acts  charged  be  clearly  and  distinctly  set 
forth  in  ordinary  and  concise  language,  and  in  such  a  manner 
as  to  enable  a  person  of  common  understanding  to  know 
what  is  intended.'^    Words  conveying  the  same  meaning  as 

upon  to  defend,  it  was  necessary,  at  the  ancient  common 
law,  to  describe  the  means  by  which  tne  homicide  was 
committed,  and  the  nature  and  extent  of  the  wound  and 
its  precise  locality;  from  which  it  necessarily  followed 
that  a  trifling  variance  between  the  proof  and  the  alle- 
gation frequently  defeated  a  conviction,  no  matter  how 
manifest  the  guilt  of  the  defendant."  People  v.  King, 
27  Cal.  511. 

29  People  V.  Choiser,  10  Cal.  311. 

30  People  V.  King.  27  Cal.  507. 

31  People  V.  King,  27  Cal.  507;  People  v.  Soto,  63  Cal.  165; 
People  V.  Lloyd,  9  Cal.  55;  People  v.  Nichol,  34  Cal.  211; 
People  V.  Hyndman,  99  Cal.  3. 

32  People  v.  Dolan,  9  Cal.  376. 

33  People  V.  Schmidt,  63  Cal.  28;  People  v.  Bonilla,  38  Cal. 
699;   People  v.  King.  27  Cal.  507. 

34  People  v.  Vance,  21  Cal.  400;  People  v.  Ah  Woo,  28  Cal. 
208;  People  v.  Bonilla.  38  Cal.  699;  People  v.  Stanton, 
39  Cal.  698. 

35  People  V.  Vance,  21  Cal.  400. 

36  People  v.  Dolan,  9  Cal  576;  People  v.  Murray,  10  Cal. 
310;  People  v.  Hyndman,  99  Cal.  3;  People  v.  Garcia, 
25  Cal.  533;  People  v.  Shaber,  32  Cal.  38;  People  v  Pool. 
27  Cal.  572. 

«7  Penal  Code  959;  People  v.  Dolan,  9  Cal.  576;  People  v. 
Alviso,  55  Cal.  230;  People  v.  Hong  Ah  Duck.  61  Cal.  390; 
People  V.  Davis,  73  Cal.  357;  People  v.  Martin,  47  Cal. 
101;  People  v.  Cronin,  34  Cal.  191;  People  v.  Coleman, 
10  Cal.  334;  People  v.  Wallrc-.  9  Cal.  31;  People  v.  Soto, 


EVIDENCE.  209 

Statute  may  be  used.^*  An  indictment  will  be  held  suffi- 
cient if  it  can  be  readily  understood  therefrom  that,  under 
such  circumstances  that  show  a  felonious  intent,  a  mortal 
wound  was  inflicted  by  the  defendant  upon  a  human  being, 
of  which  wound  he  died  within  a  year  and  a  day  from  its 
infliction.^^ 

FORM — MURDER. 

Feloniously,  wilfully,  and  of  his  malice  aforethought,  did 
kill  and  murder  C  D."'' 

HOUSEBREAKING,  see   BURGLARY. 

HOUSE    OF    ILL-FAME,    see    SEDUCTION. 

IMPERSONATION,  see   FALSE   IMPERSONATION. 

63  Cal.  165;  People  v.  Tomlinson,  66  Cal.  345;  People  v. 
Hyndman,  99  Cal.  3;  People  v.  Ybarra,  17  Cal.  166; 
People  V.  Ah  Woo,  28  Cal.  211;  People  v.  Murray,  10 
Cal.  310;  People  v.  Shr.ber,  32  Cal.  38;  People  v.  Parsons, 
6  Cal.  487;  People  v.  Garcia,  25  Cal.  533;  People  v.  White, 
34  Cal.  183;  People  v.  Phipps,  39  Cal.  326. 

38  People  V.  Potter,    35    Cal.    114. 

39  People  V.  Nichol,   34   Cal.  211. 

^0  People  V.  Cronin,  34  Cal.  210;   People  v.  Murphy,  39  Cal. 
52. 


CRIMES--14. 


CHAPTER  XXXI. 


INCEST. 

(Penal  Code,  sec.  285.) 


DEFINED. 


Incest  is  the  intermarrying  of,  or  the  commission  of 
fornication  or  adultery  by  persons  within  the  prohibited 
degree  of  consanguinity.  The  consent  of  the  female  is  not 
necessary  to  complete  the  oflfense.  There  need  be  no  mutual- 
ity in  the  crime.  The  man  may  be  guilty  although  no  guilt 
on  the  part  of  the  woman  is  shown.^  Either  party  may  be 
indicted  and  convicted  alone. '^  And  the  fact  that  the  woman 
was  under  age  of  consent  and  the  defendant  might  also  have 
been  indicted  for  rape  is  immaterial.  Both  crimes  may 
be  committed  by  the  same  act.^ 

ATTEMPT  TO  COMMIT. 

The  intent  of  the  father  to  commit  incest  with  his 
daughter  and  his  concurrent  overt  acts  in  the  use  of  means 
adopted  to  the  immediate  perpetration  and  consummation 
of  the  offense,  are  sufficient  to  show  attempt  without  actual 
penetration.*  But  an  attempt  to  contract  an  incestuous 
marriage  involves  more  than  a  mere  preparation  for  such 
marriage.' 

EVIDENCE. 

The  testimony  of  the  female  alone  is  sufficient  to  sus- 
tain a  conviction  where  slightly  corroborated,  notwithstand- 

^  People  V.  Gleason,  99  Cal.  359. 

2  People  V.  Patterson,  102  Cal.  239. 

3  People  V.  Kaiser,  119  Cal.  456. 
*  People  V.  Gleason,  99  Cal.  359. 
5  People  V.  Murray,  14  Cal.  159. 


INGEST.  211 

ing  the  defendant  positively  denies  all  the  charges  made 
against  him.®  To  prove  the  illicit  relations  previous  acts 
of  sexual  intercourse  may  be  shown.'' 

PENALTY. 

Imprisonment  in  state  prison  not. exceeding  ten  years. 

FORM INCEST. 

Wilfully,  unlawfully,  knowingly,  incestuously  and  felon- 
iously, upon  the  person  of  C  D,  the  daughter  [or  other 
person  within  prohibited  degree],  of  said  A  B,  did  commit 
fornication,  and  have  sexual  intercourse  with  and  carnally 
know  the  said  C  D.^ 

INFANT,  see  KIDNAPPING  AND  ABDUCTION. 

INNKEEPER,    see    DEFRAUDING    INNKEEPER. 

INSURED  PROPERTY,  BURNING  OF,  see  ARSON. 

JUSTIFIABLE   HOMICIDE,  see   HOMICIDE. 

«  People  V.  Kaiser,  119  Cal.  456. 
T  People  V.  Patterson,  102  Cal.  239. 

8  People  V.  Kaiser,  119  Cal.  456;   People  v.  Patterson,  102 
Cal.  239. 


CHAPTER  XXXII. 

KIONAHRING. 

(Penal  Code,  sec.  207.) 


DEFINED. 


Is  the  forcible  stealing,  taking,  or  arresting  any 
person  in  this  state,  and  carrying  him  into  another  country, 
state  or  county,  or  the  hiring,  persuading,  enticing,  decoying 
or  seducing  by  false  pretenses,  misrepresentations,  or  the 
like,  any  person  to  go  out  of  the  state,  or  to  be  taken  or 
removed  therefrom,  with  intent  to  sell  such  person  into 
slavery,  or  involuntary  servitude,  or  otherwise  employ  him 
for  his  own  use,  or  to  the  use  of  another,  without  the  free 
will  and  consent  of  the  persuaded  person.^  The  arrest  by 
an  officer  upon  a  warrant  regularly  issued  is  not  kidnap- 
ping.^ But  where  an  officer,  although  acting  under  a  war- 
rant in  all  respects  regular,  instead  of  taking  the  person 
arrested  before  a  magistrate,  takes  her  into  a  house  of  ill 
fame,  he  is  guilty  of  the  offense  of  kidnapping.^  It  is  nec- 
essary that  the  abduction  be  accompanied  with  a  removal 
from  the  county  or  state,  or  with  intent  to  remove  beyond 
the  limits  of  the  state.*  But  the  taking  out  of  the  state  is 
not  accomplished  by  taking  to  an  island  which  is  a  part  of 
the  state." 

CHILD  STEALING. 

But  a  person  who  maliciously,  forcibly  or  fraudulently 
takes  or  entices  a  child  under  the  age  of  twelve  years,  with 
intent  to  detain  and  conceal  such  child  from  the  parents  or 

1  Penal  Code  207. 

2  Ex  parte  Sternes,  82  Cal.  245. 
s  People  V.  Fick,  89  Cal.  144. 

*  People  V.  Chu  Quong,  15  Cal.  332. 
»  Ex  parte  Keil.  85  Cal.  309. 


KIDNAPPING.  213 

guardian,  or  other  person  having  lawful  charge  of  such 
child,  is  guilty  of  child  stealing."  Under  this  section  it  is 
unr.ecessary  that  the  abduction  should  be  accompanied  with 
a  removal  or  a  design  to  remove,  as  the  intent  to  detain 
and  conceal  from  parents  or  guardian  is  the  gist  of  the 
oflfense.^ 

PENALTY. 

Kidnapping,  imprisonment  in  the  state  prison  from  one  to 

ten  years. ^  If  to  commit  extortion  or  robbery,  imprison- 
ment in  state  prison  from  ten  years  to  life.^^  Child  steal- 
ing, imprisonment  in  state  prison  not  exceeding  twenty 
years.® 

INDICTMENT. 

The  acts  constituting  the  oflfense  are  sufficiently  alleged 
if  the  indictment  follows  the  language  of  the  statute.  The 
allegation  as  to  the  purpose  of  the  kidnapping  is  surplusage 
and  need  not  be  proved. ^^  Under  an  indictment  for  child 
stealing,  it  is  immaterial  that  it  also  charges  facts  which 
show  an  attempt  to  take  and  entice  away  a  child. ^^ 

FORM — KIDNAPPING. 

Unlawfully,  forcibly  and  feloniously  and  without  any 
lawful  warrant  or  authority  whatever,  and  without  first 
having  established  a  claim  to  seize  or  take  him  according 
to  the  laws  of  the  United  States,  or  the  laws  of  the 
state  of  California,  did  seize,  steal,  take  and  kidnap 
one  C  D,  with  the  design  and  intent  then  and  there 
to  take  the  said  C  D  out  of  this  state,  without  the  consent 
and  against  the  will  of  said  C  D. 

ANOTHER  FORM. 

Wilfully,  unlawfully,  feloniously  and  forcibly  did  take 
one  C  D.  then  and  there  being  in  the  said  county  of 

6  Penal  Code  278. 

7  People  V.  Chu  Quong,  15  Cal.  332. 
s  Penal  Code  208. 

8a  Penal  Code  209. 
9  Penal  Code  278. 

10  People  V.  Flck,  89  Cal.  144. 

11  People  V.  Milne,  60  Cal.  71. 


214  CRIMINAL  LAW  AND  PROckDURB. 

and  carry  said  C  D  into  another  county  in  said  state,  to  wit, 

the  county  of ,  in  said  state,  without  the  consent  and 

against  the  will  of  the  said  C  D." 

FORM — CHILD  STEALING. 

Unlawfully,  maliciously,  feloniously  and  forcibly  did  take 
away  one  C  D,  then  and  there  being  a  child  under  the  age 

of  twelve  years,  to  wit, years,  with  intent  then  and 

there  and  thereby  to  detain  and  conceal  said  child  from 
J  D,  the  father  of  said  child  [or  from  other  person  having 
the   lawful   charge   of  such   child]. 

12  People  V.  Flck,  89  Cal.  144;    People  v.  Ah  Own,  39  Cal. 
604. 


I 


CHAPTER  XXXIII. 


I^ARCKNY. 

(Penal  Code,  sees.  484-502^.) 


DEFINED. 


Larceny  is  the  felonious  stealing,  taking,  carrying,  leading 
or  driving  away  the  personal  property  of  another. 

PROPERTY   SUBJECT   OF    LARCENY. 

As  indicated  by  the  definition  only  personal  property  is 
the  subject  of  larceny  and  consequently  it  has  been  held  that 
in  order  to  be  susceptible  of  larceny  the  property  must  be 
severed  from  the  realty  and  be  capable  of  asportation.  Thus 
in  an  indictment  for  stealing  a  quantity  of  gold-bearing 
quartz  it  was  held  that  since  it  did  not  appear  that  the  quartz 
rock  had  been  severed  from  the  realty  there  could  be  no 
larceny  in  stealing  things  adhering  to  the  soil.  The  court, 
however,  suggested  the  need  of  remedial  legislation.^  But 
since  those  decisions  the  legislature  has,  by  statute,  made  it 
larceny  to  steal  ore  though  not  severed  from  the  earth  prior 
to  the  taking.^  And  the  converting  of  any  manner  of  real 
estate  into  personal  property,  by  severing  the  same  from  the 
realty  of  another,  with  felonious  intent  to  steal  and  stealing 
the  same  is  larceny.^ 

OWNERSHIP. 

Possession  of  property  is  sufficient  ownership  as  against  a 
thief.*     And  an  agister  has  a  sufficient  ownership,  for  the 

1  People  V.  Williams,  35  Cal.  671;  People  v.  Meyer,  75  Cal. 
385. 

2  Statutes  1871-72,  page  435;  People  v.  Opie,  123  Cal.  294. 

3  Statutes  1871-72,  page  282. 

4  People  V.  Oldham,  111  Cal.  648;  People  v.  Davis,  97  Cal. 
194;  People  v.  Nelson,  56  Cal.  77;  People  v.  Tomlinson, 
102  Cal.  24. 


216  CRIMINAL  LAW  AND  PROCEDURE. 

purposes  of  larceny,  of  the  property  in  his  possession,  even 
though  he  has  an  interest  in  the  increase  of  the  stock  which 
might  make  him  a  joint  owner  with  another."*  A  party 
cannot  be  convicted  of  larceny  of  his  own  property."  Yet,  if 
it  be  taken  from  a  bailee,  or  other  person  in  lawful  possession 
with  intent  to  charge  such  person  therewith,  it  is  larceny.* 

ASPORTATION. 

Larceny  implies  a  change  of  possession  from  the  owner 
to  the  thief,  therefore,  it  is  necessary  to  show  asportation, 
which  an  attempt  to  carry  away  does  not  show.^  To  con- 
stitute larceny  there  must  be  a  feloniously  and  fraudulent 
taking  of  property  with  intent  to  deprive  the  owner  of  its 
use.*  The  act  of  taking  must  co-exist  with  the  felonious 
intent  to  deprive  the  owner  of  his  property."  But  the 
asportation,  the  ownership  of  the  property  and  the  intent 
with  which  it  is  carried  away  are  questions  of  fact  for  the 
jury."  Where  a  coat  was  removed  from  a  dummy  in  front 
of  a  store  but  still  remained  attached  by  a  chain,  there  was 
no  taking.^'^  And  the  killing  of  a  domestic  animal  without 
removing  the  carcass  is  not  larceny.^^  But  the  taking  or 
enticing  the  animal  away,  with  intent  to  appropriate  it,  is 
larceny.". 

TIME  OF  TAKING. 

Time  is  not  an  essence  of  the  offense  of  larceny ;  it  need 
not  be  shown  that  the  crime  was  committed  on  the  precise 
day  alleged,  if  before  the  filing  of  the  information  and  within 
a  reasonable  time  of  the  day  named." 

6  People  V.  Buelna,  81  Cal.  135. 

0  People  V.  MacKinley,  9  Cal.  250. 

7  People  V.  Stone,    16   Cal.    369;    People   v.    Thompson,    34 
Cal.  671;  Jones  v.  Jones,  71  Cal.  89. 

8  People  V.  Meyer,  75  Cal.  383;   People  v.  Murphy,  47  Cal. 
103, 

»  People  V.  Juarez,  28  Cal.  380;  People  v.  Brown,  105  Cal. 

66. 

10  People  V.  Salorse,  62  Cal.  139;  People  v.  Morino,  85  Cal. 

515. 

n  People  V.  Carabin,  14  Cal.  439. 

12  People  V.  Meyer,  75  Cal.  383. 

13  People  V.  Murphy,  47  Cal.  103. 
1*  People  V.  Smith,  15  Cal.  408. 

i«  People  V.  French,  95  Cal.  371;   Penal  Code  995. 


LARCENY. 


217 


INTENT. 

Obtaining  money  with  fraudulent  intent  to  convert  and 
converting  it,  is  larceny.^"  The  felonious  intent  is  an  element 
of  the  crime  and  must  be  shown. ^'  It  is  a  question  of  fact 
for  the  jury.^*  Taking  property  from  a  friend  for  safe 
keeping  ;^°  or  without  felonious  intent  ;^^  or  with  the  consent 
of  the  party,  does  not  amount  to  larceny. ^^  But  mere  passive 
submission,  however,  does  not  show  consent. ^^  Consent 
to  the  taking  is  a  matter  of  defense  and  must  be  shown  bv 
the  accused. ^^  A  claim  to  the  property  made  m  good  faith 
although  not  legal  will  overcome  the  intent  to  steal. ^*  But 
a  fraudulent  procurement  of  property  with  the  felonious 
intent  to  convert  it  is  larceny.^^  So  that  money  obtained  by 
means  of  a  bunco  game  shows  a  felonious  intent  and  is 
larceny.-"  This  intent  must  exist  at  the  time  of  the  taking." 
But  where  the  taking  was  wrongful  the  intent  to  steal  may 
be  formed  afterwards.-*  Where  there  was  a  felonious 
intent  in  getting  possession  of  the  property,  and  afterwards 
an  appropriation  it  is  larceny.^"  An  unlawful  appropriation 
by  the  finder  of  the  property  is  larceny.^"  The  felonious 
intent  in  all  cases  must  be  wholly  and  permanently  to  deprive 
the  owner  of  his  property,  so  that  a  taking  temporarily  or 
for   purposes   of   revenge   is   not   larceny.''^      And    it   must 

ic  People  V.  Raschke,  73  Cal.  385;   People  v.  Smallman,  55 

Cal.  185;  People  v.  Shaughnessy,  110  Cal.  602. 
■  People  V.  Devine,   95   Cal.   227. 
i«  People  V.  Swalm,  80  Cal.  46. 
I'J  People  V.  Stewart,  80  Cal.  129. 
'-'>  People  V.  Hansen,  84  Cal.  294. 

21  People  V.  Hanselman,  76  Cal.  460. 

22  People  V.  Hanselman,   76   Cal.   460. 
2'5  People  V.  Davis,  97  Cal.  194. 

24  People  V.  Eastman,   77   Cal.    171. 

25  People  V.  Raschke,  83  Cal.  501. 

26  People  V.  Shaughnessy,   110   Cal.   602. 

27  People  V.  Morino,  85  Cal.  515;    People  v.  Jersey,  18  Cal. 
337;  People  v.  Salorse,  62  Cal.  139. 

2R  People  V.  Pico,  62  Cal.  50. 

2fl  People  V.  Montarial,   120   Cal.    691. 

30  People  V.  Buelna,  81  Cal.  135;   People  v.  Dev:ae.  95  Cal. 
231. 

31  People  V.  Brown,  105  Cal.  66. 


218  CRIMINAL  LAW  AND  PROCEDURK. 

appear  that   the   defendant   and   no   other   committed   the 
offense.'''    Motive  for  the  crime  is  always  apparent.*' 

LARCENY  BY   BAILEE. 

Where  a  bailee  secures  possession  of  property  with  intent 
to  steal  it,  and  does  steal  it,  he  is  guilty  of  larceny.'*.  Like- 
wise where  a  broker,  takes  a  bank  check  with  intent  to  steal 
it;''  or  where  a  warehouse  foreman  sells  property  without 
authority ;  and  the  person  who  buys  the  same  knowingly  is 
guilty  of  receiving  stolen  property.'^ 

LARCENY  DISTINGUISHED   FROM    EMBEZZLEMENT. 

Where  the  bailee  of  property  obtains  possession  of  it  from 
the  owner  with  the  intention  of  stealing  it,  and  carries  out 
that  intent,  he  is  guilty  of  larceny ;  but  where  the  intent  to 
steal  did  not  exist  at  the  time  of  taking  possession  of  the  prop- 
erty by  the  bailee,  but  was  conceived  afterwards,  it  is 
embezzlement.'^  Where  the  property  was  openly  taken  from 
a  sleeping  and  intoxicated  friend  with  the  avowed  intent 
of  caring  for  it,  if  subsequent  conduct  showed  an  intent  to 
convert  instead  of  caring  for  it,  it  is  larceny.'* 

LARCENY  AND  FALSE  PRETENSES  DISTINGUISHED. 

It  is  essential  to  the  crime  of  larceny  that  the  title  to  the 
stolen  property  should  not  have  been  parted  with.  If  the 
title  has  been  obtained  by  fraud  or  deceit,  the  crime  is  that 
of  obtaining  property  under  false  pretenses,  and  not  lar- 
ceny ;  but  if  the  transfer  be  of  possession  merely,  or  of  some 
special  property  by  way  of  pledge  or  bailment,  which  has 
been   secured   by   fraud,   with  present   felonious   intent  to 

82  People  V.  Carrillo,  70  Cal.  643;  People  v.  Kaiser,  119  Cal. 
459. 

33  People  V.  Kelly,  132  Cal.  480. 

34  People  V.  Smith,  23  Cal.  280;  People  v.  Raschke,  73  Cal. 
383. 

85  People  V.  Abbott,  53  Cal.  284. 

36  People  V.  Perini,  94  Cal.  573. 

37  People  V.  Smith,  23  Cal.  280;  People  v.  Johnson,  71  Cal. 
390;  People  v.  Abbott,  53  Cal.  284;  People  v.  Salorse, 
62  Cal.  139;  People  v.  Morino,  85  Cal.  517;  People  v.  De 
Graaf,  127  Cal.  676;  People  v.  Montarial,  12  Cal.  691; 
People  V.  Raschke,  73  Cal.  383. 

38  People  V.  Hansen,  84  Cal.  291. 


LARCENY.  219 

convert  the  property  so  acquired,  the  offense  is  larceny.'* 
Obtaining  money  by  fraud  when  the  title  remains  in  the 
owner  is  larceny.*"  In  larceny  the  owner  does  not  intend  to 
part  with  title  and  possession,  while  in  false  pretenses  he 
does.*^  And  where  the  facte  show  larceny  and  also  false 
personation,  the  defendant  may  be  prosecuted  for  larceny, 
although  he  might  also  be  informed  against  for  false  pre- 
tenses.*^. 

GRAND  LARCENY. 

It  is  in  the  power  of  the  legislature  to  declare  the  larceny 
of  specific  property  to  be  grand  larceny  without  reference 
to  its  value,  and  it  has  so  declared.*^  It  is  grand  larceny 
where  the  property  taken  is  a  horse,  mare,  gelding,  cow, 
steer,  bull,  calf,  mule,  jack,  jenny  or  a  bicycle.**  But  such 
animal  must  be  alive.  The  stealing  of  a  carcass  of  an 
animal  is  not  grand  larceny  irrespective  of  its  value.*^  The 
word  horse  includes  mare  ;'*"  also,  gelding.*^  And  cow 
includes  heifer.''*  In  all  other  cases  to  constitute  grand 
larceny,  the  property  stolen  must  exceed  fifty '  dollars  ;*^  or 
have  been  taken  from  the  person  of  another.***  But  in  order 
to  constitute  a  taking  from  the  person,  the  property  must 
be  attached  to  the  person,  or  carried  or  held  in  actual  phy- 
sical possession.  The  taking  from  the  pocket  of  a  garment 
under  the  head  of  a  sleeper  is  not  a  taking  from  his  person.'^^ 
The  value  of  the  goods  is  a  question  for  the  jury,^-     And 

39  People  V.  Campbell,  127  Cal.  278;  People  v.  Raschke, 
73  Cal.  378;  People  v.  Johnson,  91  Cal.  265;  People  v. 
Tomlinson,  102  Cal.  19;  People  v.  Shaughnessy,  110  Cai. 
602;  People  v.  Montarial,  120  Cal.  695;  People  v.  Belden, 
37  Cal.  51;   People  v.  De  Coursey,  61  Cal.  136. 

40  People  V.  Rae,  66   Cal.   426. 

41  People  V.  Martin,  102  Cal.  558. 

42  People  V.  Campbell,  127  Cal.  278;  People  v.  Frigerio, 
107  Cal.  152. 

43  People  V.  Townsley,  39  Cal.  405;  People  v.  Cheuy  Ying 
Git,  100  Cal.  439. 

44  Penal  Code  487;   People  v.  Barnes,  65  Cal.  16. 

45  People  V.  Smith,    112   Cal.   333. 

46  People  V.  Pico,  62  Cal.  50. 

47  People  V.  Monteith,  73  Cal.  7. 

48  People  V.  Soto,  49  Cal.  67. 

49  People  V.  Marshall,  59  Cal.  391. 

50  Penal  Code  487. 

51  People  V.  McElroy,  116  Cal.  583;  People  v.  Appleton,  120 
Cal.  252. 

52  People  V.  Staples,  91  Cal.  23. 


2H)  CRIMINAL  LAW  AND  PROCEDUKE. 

where  the  evidence  shows  that  it  might  be  either  grand  or 
petit  larceny  the  court  must  instruct  the  jury  on  both.'** 
There  are  no  degrees  in  larceny  and  a  verdict  of  guilty 
where  the  indictment  charges  grand  larceny  is  sufficient  to 
convict  of  that  crime."* 

EVIDENCE. 

Though  evidence  of  wealth  or  poverty  of  the  accused  is 
not  permissible,  evidence  is  admissible  to  show  that  previous 
to  the  date  of  the  crime  the  defendant  was  without  money, 
and  that  immediately  after  that  date  he  had  a  large  sum."" 
Experts  may  testify  to  cattle  brands,^"  and  it  may  be  shown 
that  the  defendant  had  destroyed  the  marks  and  brands  on 
the  carcass.""  Ear  marks  of  a  hog  are  some  evidence  of 
ownership  although  not  recorded."*  Strict  proof  of  the 
identity  of  coin  is  not  required."*  The  identity  of  the  stolen 
property  is  a  question  for  the  jury.""  Ownership  by  a  cor- 
poration may  be  shown  by  proof  of  a  corporation  de  facto.'^ 
Where  the  evidence  tends  to  show  that  a  purse,  dropped 
by  a  co-defendant,  was  passed  to  him  by  the  defendant,  it 
is  admissible  as  a  part  of  the  res  gestae  °^  And  evidence  of 
adulterous  intercourse  between  the  defendant  and  the  wife 
of  the  owner  of  the  property  is  admissible  to  show  that  the 
defendant  knew  the  property  given  him  by  her  was  given 
against  the  will  of  the  husband."^ 

RECENT   POSSESSION    OF   STOLEN    PROPERTY. 

Recent  possession  of  stolen  property  alone  is  not  sufficient 
to  convict,"*  but  where  other  inculpatory  circumstances  are 
shown    in    the   absence   of   explanation    it    is    sufficient   to 

B-i  People  V.  Comyns,  114  Cal.  107. 

3*  People  V.  Price,  67  Cal.  350;   People  v.  Manners,  70  Cal. 

428;  People  v.  Perez,  87  Cal.  123. 
•'-5  People  V.  JCelly,  132  Cal.  430. 
00  People  V.  Fitzpatrick,  80  Cal.  538. 
"  People  V.  Murphy,  47  Cal.   103. 
58  People  v.Bolanger,  71  Cal.  17. 
09  People  V.  Linn,  23  Cal.  150. 
60  People  V.  Jim  Ti.  32  Cal.  60. 
«i  People  V.  Barric.  49  Cal.  342. 
«2  People  V.  Piggott,  126  Cal.  509. 
«3  People  V.  Swalm.   80   Cal.    46. 
"*  People  V.  Vilarde,   59   Cal.    463;    People   v.    Swinford    57 

Cal.  86. 


LARCENY.  221 

authorize  the  submission  of  the  case  to  the  jury.*"*  It  does 
not  constitute  a  legal  conclusion  of  guilt.""  Neither  is  it, 
unexplained,  prima  facie  evidence  of  guilt,"^  but  is  merely  a 
guilty  circumstance  to  be  taken  into  consideration  with  other 
facts/"*  unless  satisfactorily  explained,*"*  and  from  which 
the  defendant's  complicity  in  the  larceny  may  be  inferred/** 
And  the  jury  may  presume  from  the  fact,  if  they  find  the 
defendant  stole  the  property  that  all  the  property  stolen  at 
the  same  time  and  place  was  stolen  by  the  defendant,  unLss 
some  facts  are  shown  to  the  contrary. '^^  Its  value  as 
evidence  is  greatly  enhanced  if  the  stolen  property  be  rare 
coin,^^  but  whether  it  be  strong  evidence  or  only  slight  is  a 
question  for  the  jury.'^^  But  it  must  be  shown  that  the 
possession  was  personal  and  exclusive  and  involved  a  distinct 
and  conscious  assertion  of  possession  ;'*  and  was  with  the 
consent  and  will  of  the  defendant.'^.  The  defendant  may 
show  by  other  evidence  that  his  possession  was  innocent,"® 
or  that  he  purchased  it  from  another.^"  Possession  of  other 
stolen  property  may  be  shown  to  overthrow  evidence  of 
rightful  possession/^     The  identity  of  the  money  stolen  is 

05  People  V.  Vidal,   121  Cal.   221. 

"■■«  People  V.  Levison,    16   Cal.   99;    People  v.   Chambers,   18 

Cal.    384;     People    v.    Kraker,    72    Cal.    461;     People    v. 

Noreaga,  48  Cal  123;  People  v.  Cline,  74  Cal.  577;  People 

V.   Antonio,  27   Cal.   407;    People  v.   Hurley,  60  Cal.   77; 

People  V.  Kelly,  28   Cal.   427;    People  v.   Clough,   59  Cal. 

438. 

67  People  V.  Gassawayj  23  Cal.  51. 

68  People  V.  Rodundo,  44  Cal.  538;  People  v.  Etting,  99  Cal. 
578;  People  v.  Abbott,  101  Cal.  647;  People  v.  Gill,  45  Cal. 
285;  People  v.  Mitchell,  55  Cal.  236;  People  v.  Clough,  59 
Cal.  438;  People  v.  Velarde,  59  Cal.  463;  People  v.  Fagan, 
66  Cal.  534;  People  v.  Hannon,  85  Cal.  374. 

60  People  V.  Luchetti,  119  Cal.  501. 

70  People  V.  Kelly,  28  Cal.  427;   People  v.  Antonio,  27  Cal. 

404. 
"1  People  V.  Fagan,  66  Cal.  534. 
"2  People  V,  Getty,  49  Cal.  581. 
■«  People  V.  Titherington    59  Cal.  598;    People  v.   Cline.  74 

Cal.    577. 
-*  People  V.  Hurley,  60  Cal.  74. 
■n  People  V.  Warren,  130  Cal.   683. 
"6  People  V.  Buelna,  81  Cal.  136. 
T-  People  V.  Cline,  74  Cal.  576. 
78  People  V.  Lopez,    59    Cal.    362;    People    v.    Cunningham, 

66  Cal.  669. 


222  CRIMINAL  I4AW  AND  PROCEDURE. 

not  required,  but  it  is  sufficient  to  show  that  the  money  found 
on  the  defendant  was  the  same  amount,  the  same  coin  and 
denomination  and  the  defendant  was  in  a  ^Dosition  to  have 
taken  it."  The  finding  of  the  property  at  the  place  indicated 
in  the  confession  of  the  defendant,  renders  the  confession 
admissible,  whether  it  was  given  under  duress  or  not.*^  An 
innocent  possession  may  be  rebutted  by  evidence  that  the 
defendant  asked  of  a  third  person,  before  the  larceny  was 
committed,  if  he  did  not  want  to  buy  property  of  the  nature 
of  that  stolen.®^ 

VARIANCE. 

A  variance  as  to  the  ownership  is  immaterial  where  the 
property  is  otherwise  described,®^  or  where  the  description 
identifies  the  owner.®^  And  under  a  charge  of  larceny  for 
obtaining  money  by  fraud,  evidence  that  the  money  paid 
to  the  defendant  by  the  prosecuting  witness  came  from  the 
separate  estate  of  his  wife,  and  was  given  by  her  to  the 
prosecuting  witness  to  provide  security  required  by  the 
defendant,  does  not  show  a  variance  from  the  allegation  that 
the  property  belonged  to  the  husband.®*  And  an  allegation 
of  ownership  in  Samuel  and  proof  in  Sam  is  not  a  material 
variance.®°  But  a  charge  of  larceny  of  five  stock  certificates 
of  the  same  number  is  not  supported  by  proof  of  larceny  of 
one  of  that  number.®"  A  material  variance  between  the 
proof  and  the  information  arises  only  when  the  acquittal  of 
the  defendant  under  the  information  will  be  no  bar  to  a 
further  prosecution  for  the  s^me  oflfense;  but  where  the 
discrepancy  does  not  affect  the  validity  of  the  information, 
or  prejudice  or  affect  the  substantial  rights  of  the  defendant 
in  his  defense,  the  variance  is  immaterial." 

78  People  V.  Wong  Chong  Suey,  110  Cal,  117. 

80  People  V.  Murphy,  47  Cal.  103. 

81  People  V.  Luchetti,  119  Cal.  501. 

82  People  V.  Watson,   72  Cal.   402;    People  v.   Anderson.   RO 
Cal.  207;  People  v.  Ribolsi,  89  Cal.  492. 

83  People  V.  Smith,  112  Cal.  333;   People  v.  Armstrong,  114 
Cal.  573;  People  v.  Leong  Quong,  60  Cal.  107. 

8*  People  V.  Tomlinson,  102  Cal.  19. 

85  People  V.  Armstrong,    114   Cal.   570;    see   also   People   v. 
Arras,  89  Cal.  223. 

86  People  V.  Coon,   45   Cal.   672;    People   v.   Strassman,   112 
Cal.   683. 

8T  People  V.  Arras,  89  Cal.  223. 


LARCENY.  223 

RECEIVING  STOLEN  GOODS. 

The  crime  of  larceny  is  distinct  from  that  of  receiving 
■stolen  goods  and  proof  of  the  latter  crime  is  insufficient 
to  convict  one  accused  of  the  former.^  Nor  is  a  receiver  of 
stolen  goods  an  accessory  after  the  fact  of  the  larceny.^  A 
verdict  of  larceny  cannot  be  had  upon  proof  of  receiving 
stolen  goods.^  And  it  is  not  larceny  if  the  defendant  had 
no  knowledge  of  its  commission  prior  to  the  receiving  of 
the  goods.* 

LARCENY  NOT  INCLUDED  IN  BURGLARY. 

Larceny  is  not  an  element  of  burglary  and  not  included 
in  it,^  even  when  committed  at  the  same  time,®  and  a  trial 
for  burglary  and  a  conviction  of  larceny  will  not  be  upheld ; 
both  these  crimes  cannot  be  charged  in  the  same  indict- 
ment/ as  they  are  two  separate  and  distinct  offenses.® 

VENUE. 

The  venue  may  be  laid  in  the  county  into  which  the  stolen 
property  was  taken. **  The  jurisdiction  is  in  either  county.^" 
But  the  bringing  of  the  goods  into  the  county  does  not  confer 
jurisdiction  »where  the  larceny  was  committed  in  a  foreign 
country.^^  The  venue  is  in  any  county  into  which  the 
stolen  goods  are  taken. ^- 

INDICTMENT — DESCRIPTION    OF    PROPERTY. 

The  indictment  need  not  give  the  description  of  the  prop- 
erty in  detail/^  but  it  must  correctly  describe  the  property 

1  People  V.  Ward,  105  Cal.  653. 

2  People  V.  Stakem,  40  Cal.  599;  People  v.  Maxwell,  24  Cal. 
14. 

3  People  V.  Eagan,  98  Cal.  230;   People  v.  Ward,  105  Cal. 
652. 

*  People  V.  Maxwell,  24  Cal.   14;    People  v.   George  Tilley 

California  Decisions   Dec.   12,  1901. 
5  People  V.  Curtis,  76  Cal.  57. 
0  People  V.  Garnett,  29  Cal.  622. 

7  People  V.  Garnett,  29  Cal.  622. 

8  People  V.  Curtis,  76,  Cal.  58. 

0  People  V.  Mellon,  40  Cal.  648;  People  v.  Scott,  74  Cal.  96; 
People  V.  Staples,  91  Cal.  27. 

10  People  V.  Robles,  29  Cal.  421. 

11  People  V.  Black,  122  Cal.  73. 

12  People  V.  Garcia,  25  Cal.  531. 

13  People  V.  Stanford,  64  Cal.  27. 


224  CRIMINAL  LAW  AND  PROCEDURE. 

Stolen  for  the  purpose  of  identification,"  and  unnecessary 
matters  alleged  in  the  indictment  may  be  in  the  alternative 
■as,  for  instance,  the  color  of  the  animal  stolen."  In  an 
indictment  for  larceny  of  coin  it  is  not  necessary  to  allege 
the  value  of  each  coin  stolen.^"  The  value  of  the  money  is 
not  necessary  to  be  alleged  where  it  is  set  forth  as  lawful 
money  of  the  United  States. ^^  U  the  indictment  be  for  the 
larceny  of  money,  bank-notes,  certificates  of  stock,  or  val- 
uable securities,  it  need  not  specify  the  coin,  number,  denom- 
ination or  kind  thereof.^*  And  where  the  property  is  not 
money  it  is  sufficient  to  allege  its  value  without  alleging 
it  to  be  in  lawful  money  of  the  United  States."  The  prop- 
erty is  sufficiently  described  where  it  is  alleged  as  four 
calves,  the  property  of  L.-"  The  value  of  each  article  need 
not  be  separately  stated.-^  The  description  may  be  in  a 
general  way.^-  It  may  be  described  as  belonging  to  the 
estate  of  a  deceased  person  without  specifying  his  heirs  or 
legal  representatives.^^  An  indictment  for  "larcey"  will  not 
support  a  conviction  for  larceny,  as  "'larcey"  is  a  crime 
unknown  to  our  law.^^ 

The  asportation  may  be  alleged  in  the  disjunctive.^"  It 
is  sufficient  to  charge  the  stealing  of  an  animal  as  having 
been  taken  and  carried  away  without  charging  a  leading  or 
driving  away.-" 

Intent.  The  felonious  taking  is  an  essential  part  of 
the  crime."  It  is  not  necessary  to  allege  that  the  taking 
was  with  intent  to  steal  when  it  is  alleged  that  the  defend- 

1^  People  V.  Winkler,  9  Cal.  234. 

15  People  V.  Smith,  15  Cal.  409. 

10  People  V.  Green,  15  Cal.  512;  People  v.  Poggi,  19  Cal.  600. 

17  People  V.  Millan,  106  Cal.  320. 

18  Penal  Code  967. 

10  People  V.  Righetti,  b6  Cal.  184. 

i:o  People  V.  Warren,  130  Cal.  683;  see  also  People  v.  Little- 
field,  5  Cal.  355;  People  v.  Stanford,  64  Cal.  27. 

i!i  People  V.  Robles,  34  Cal.  591. 

22  People  V.  Burns,  121  Cal.  529. 

•■i^  People  V.  Prather,  120  Cal.  660. 

24  People  V.  St.  Clair,  56  Cal.  406. 

26  People  V.  Smith,  15  Cal.  409. 

20  People  V.  Strong,  46  Cal.  303. 

=■  People  V.  Cheong  Foon  Ark,  61  Cal.  527;  People  v. 
Devine,  95  Cal.  229. 


LARCENY.  225 

ant  feloniously,  wilfully  and  unlawfully  took,  stole  and 
carried  away.^*  Feloniously  need  not  be  alleged  as  the  word 
steal  charges  a  criminal  intent.^"  While  the  word  steal 
imports  larceny,  yet  the  use  of  the  word  feloniously  before 
it  is  not  erronious.^" 

The  ownership  should  be  alleged  as  of  the  date  of  tlie 
offense,^^  but  it  may  be  by  way  of  participle  instead  of  by 
verb,  though  this  method  is  not  favored ;  it  is  better  to  make 
positive  averment.^^  Ownership  is  not  essential  to  be  alleged 
where  the  property  is  otherwise  sufficiently  described,^^  but 
where  not  otherwise  described,  the  ownership  becomes  a 
material  part  of  the  description  of  the  offense.^*  In  any 
event  it  must  appear  that  the  ownership  is  in  some  one 
other  than  the  defendant.^^  It  may  be  alleged  as  of  a  firm 
name  without  specifying  the  partners  of  the  firm.^*  The 
community  property  which  is  subject  to  the  husband's  con- 
trol and  disposition  is  his  property  for  the  purpose  of  lar- 
ceny and  the  consent  of  the  wife  to  the  taking  is  no 
defense.^^ 

BAILEE. 

Indictment   for   larceny   as   a  bailee   must   state   all   the 
essential  facts  of  the  bailment,  but  the  particular  mode  of . 
conversion  need  not  be  alleged, ^^  but  the  description  of  the 
property  must  be  alleged.'* 

28  People  V.  Brown,  27  Cal.  500. 

29  People  V.  Lopez,  90  Cal.  569;  People  v.  Urquldas,  96  Cal. 
239;   People  v.  Tomlinson,  102  Cal.  25. 

30  People  V.  Tomlinson,  102  Cal.  19. 

31  People  V.  Lewis,  64  Cal.  401. 

32  People  V.  Piggott,  126  Cal.  509. 

33  People  V.  Hughes,  41  Cal.  234. 

34  People  V.  Wallace,  94  Cal.  501. 

35  People  V.  Hanselman,  76  Cal.  460. 

36  People  V.  Goggins,  80  Cal.  229;  People  v.  Barnes,  65  Cal. 
16;  People  v.  Ribolsi,  89  Cal.  496;  People  v.  Henry,  77 
Cal.  447;  People  v.  Ah  Sing,  19  Cal.  598;  People  v. 
Hughes,  41  Cal.  237.  It  was  formerly  held  in  this  state 
that  if  the  property  belonged  to  a  partnership,  the  indi- 
vidual  members  must  be  alleged.     People  v.   Bogart,  36 

Cal.  245. 

37  People  V.  Swalm,  80  Cal.  46. 

38  People  V.  Poggi,   19   Cal.  600;    People  v.   Garcia,  25   Cal. 
531;  People  v.  Johnson,  71  Cal.  390. 

39  People  V.  Peterson,  9  Cal.  314;   People  v.  Poggi,  19  Cal. 
601;  People  v.  Johnson,  71  Cal.  390. 

CPIMES--15 


226 


CKIMINAL  LAW  AND  PROCEDURF:. 


PENALTY. 


Grand  larceny,  imprisonment  in  state  prison  from  one  to 
ten  years  ;*°  petit  larceny,  fine  not  exceeding  five  hundred 
•dollars  or  by  imprisonment  in  county  jail  not  exceeding^ 
.six  months  or  both.*^ 

'  -  FORM — LARCENY. 

Wilfully,  unlawfully  and  feloniously  did  steal,  take  and 
carry  away  [or  lead  and  drive  away,  as  the  case  may  be] 
a  certain  pair  of  shoes  [or  other  property,  describing  it],  the 
personal  property  of  one  C  D,  of  the  value  of dol- 
lars, lawful  money  of  the  United  States. 

Note.  In  case  the  property  is  owned  by  a  partnership,  the 
allegation  may  be  "the  property  of  C  D  and  E  F,  copart- 
ners doing  business  under  the  firm  name  and  style  of  D 
&  F."  In  case  of  a  corporation  the  allegation  should  be 
"the  property  of  C  D  Company,  a  corporation."  In  case 
the  property  is  of  value  exceeding  fifty  dollars  or  is  taken 
from  the  person  of  another,  or  is  a  horse,  mare,  gelding, 
cow,  steer,  bull,  calf,  mule,  jack,  jenny  or  bicycle  it  is  grand 
larceny.  If  from  the  person  the  allegation  should  be  "then 
and  there  did  take,  steal  and  carry  away  from  the  person 
of  one  C  D." 

PETIT    LARCENY   AFTER    PRIOR   CONVICTION. 
[Penal  Code,  sec.   667.] 

That  on  the  —  day  of  ,  190 — ,  by  judgment  of  the 

justice  court  of township, county,  state  afore- 
said, the  said  A  B  was  duly  convicted  of  the  crime  of  petit 
larceny  committed  as  follows :  That  the  said  A  B  at  and  in 
the  county  of  ,  state  of  California,  wilfully,  unlaw- 
fully and  feloniously  did  steal,  take  and  carry  away  one 
set  of  harness  [or  other  property,  describing  it],  the  personal 
property  of  one  E  F  and  of  the  value  of dollars  law- 
ful money  of  the  United  States ;  that  afterwards,  to  wit,  on 

the  —  day  of ,  190 — ,  the  crime  of  petit  larceny  was 

committed  by  said  A  B,  committed  as  follows :  That  on  said 

—  day  of ,  190 — ,  at  and  in  the  county  of ,  state 

of  California,  the  said  A  B  wilfully,  unlawfully  and  felon- 

*o  Penal  Code  489. 
*i  Penal  Code  490. 


LARCENY.  227 

iously  did  steal,  take  and  carry  away  one  coat  [or  other 
property,  describing  it],  the  personal  property  of  C  D  and 

of  the  value  of dollars  lawful  money  of  the  United 

States. 

FORM — CONVERSION    OF    REAL    ESTATE. 

Wilfully,  unlawfully  and  feloniously  did  sever  from  the 
dwelling  house  [or  other  realty,  naming  it]  of  one  C  D  there 
situate,  one  gas  fixture   [or  other  property,  describing  it], 

the  property  of  the  said  C  D,  of  the  value  of dollars 

lawful  money  of  the  United  States,  and  then  and  there 
unlawfully  and  feloniously  did  take,  steal  and  carry  away 
the  same. 


CHAPTER  XXXIV. 


LIBEL. 

[Penal  Code,  sec.  248.] 


PURPOSE  OF  LAW. 

Prosecutions  for  libel  are  conducted  for  public  purposes. 
The  publication  of  libel  has  a  tendency  to  provoke  breaches 
of  public  peace,  which  the  law  is  solicitious  to  maintain  and 
preserve.  Persons  feeling-  themselves  injured  by  such  pub- 
lications are  incited,  in  many  instances,  to  seek  satisfaction 
by  personal  violence  inflicted  upon  the  supposed  libeler. 
The  law  out  of  a  precautionary  policy,  and  in  the  interest 
of  the  preservation  of  the  peace  of  society,  discourages  such 
violent  remedies  and  provides  a  punishment  for  the  libeler, 
who  wantonly  puts  the  ^public  peace  at  hazard  by  printing 
and  publishing  untrue  and  malicious  attacks  on  private 
character.^ 

DEFINED. 

A  libel  is  a  malicious  defamation,  expressed  either  by 
writing,  printing,  or  by  signs  or  pictures,  or  the  like,  tending 
to  blacken  the  memory  of  one  who  is  dead,  or  to  impeach 
the  honesty,  integrity,  virtue  or  reputation,  or  publish  the 
natural  or  alleged  defects  of  one  who  is  alive,  and  thereby 
to  expose  him  to  public  hatred,  contempt  or  ridicule.-  An 
injurious  publication  is  presumed  to  have  been  malicious 
if  no  justifiable  motive  for  making  it  is  shown,^  but  a  com- 
munication made  to  a  person  interested  in  the  communication 
by  one  who  is  also  interested,  or  who  stood  in  such  relation 
to  the  former  as  to  afford  a  reasonable  ground  for  supposing 
his  motive  innocent,  is  not  presumed  to  have  been  malicious 

1  People  V.  Crespi,  115  Cal.  50. 

2  Penal  Code  248. 

3  Penal  Code  250. 


LIBEL.  229 

and  is  a  privileged  communication.*  And  in  all  prose- 
cutions for  libel  the  truth  may  be  given  in  evidence,  and  if 
it  appear  to  the  jury  that  the  matter  charged  as  libelous  is 
true  and  was  published  with  good  motives  and  for  justifiable 
ends,  the  party  shall  be  acquitted.  The  jury  are  judges  of 
both  the  law  and  the  facts,"  but  the  jury  are  not  at  liberty 
to  determine  that  what  the  statute  declares  to  be  criminal 
libel  is  not  such.*'  It  is  not  necessary  that  the  words  or  things 
complained  of  should  have  been  read  or  seen  by  another. 
It  is  sufficient  that  the  accused  knowingly  parted  with  the 
immediate  custody  of  the  libel,  under  circumstances  which 
exposed  it  to  be  read  or  seen  by  any  other  person  than  him- 
self." It  need  not  appear  that  the  accused  personally  wrote 
or  printed  or  circulated  the  libel.  It  is  enough  to  show 
that  he  had  control  and  knowingly  allowed  the  libel  to  be 
printed  or  published,^  for  each  author,  editor  and  prop- 
rietor of  any  publication,  is  chargeable  with  the  publication 
of  any  words  contained  in  any  part  thereof,®  but  he  is  not 
liable  to  a  prosecution  for  a  fair  and  true  report  of  any 
judicial,  legislative  or  other  public  official  proceedings,  or 
of  any  statement,  speech,  argument  or  debate  in  the  course 
of  the  same,  except  upon  proof  of  malice  in  making  such 
report,  which  shall  not  be  implied  from  the  mere  fact  of 
publication. ^°  Libelous  remarks  or  comments,  however, 
connected  with  such  report  are  not  privileged. ^^  The  editor- 
ship and  proprietorship  of  the  paper  is  not  a  part  of  the 
corpus  delicti ;  and  acts  and  admissions  relative  thereto  do 
not  amount  to  a  confession.^^ 

PENALTY. 

Fine  not  exceeding  five  thousand  dollars  or  imprisonment 
in  the  county  jail  not  exceeding  one  year. 

*  Penal  Code  256. 

5  Penal  Code  251. 

6  People  V.  McDowell,  71  Cal.  194. 
-  Penal  Code  252. 

8  People  V.  Miller,  122  Cal.  84. 

9  Penal  Code  253. 

10  Penal  Code  254. 

11  Penal  Code  255. 

12  People  V.  Miller,  122  Cal.  84.     . 


280  CRIMINAL  LAW  AND  PROCEDUBE. 

INDICTMENT. 

The  indictment  need  not  set  forth  any  intrinsic  facts  for 
the  purpose  of  showing  the  application  to  the  party  libeled 
of  the  defamatory  matter  on  which  the  indictment  was 
founded ;  but  it  is  sufficient  to  state  generally  that  the  same 
was  published  concerning  him,  and  the  fact  that  it  was  so 
published,  must  be  established  on  the  trial. ^'  If  the  attack 
is  not  libelous  on  its  face,  the  indictment  must  allege  the 
facts  by  way  of  innuendo  or  colloquium  to  show  such  fact.^* 

VENUE, 

The  crime  is  indictable  in  the  county  of  the  residence 
of  the  prosecutor.  And  it  may  be  shown  that  the  paper  was 
circulated  there,  but  it  need  not  appear  by  whom." 

FORM. 

Wilfully,  unlawfully  and  maliciously,  and  with  intent 
thereby  to  injure  and  defame  one  C  D,  and  to  expose  him 
to  public  hatred,  contempt  and  ridicule,  did  compose,  print 

and  publish  in  a  certain  newspaper  called  the ,  printed 

and  published  at  — ,  in  the  county  of ,  state  of 

California,   and  circulated  in  said  county,  certain 

false,  scandalous,  malicious,  defamatory  and  libelous  words 
of,  and  concerning  the  said  C  D,  to  wit:  [Here  set  out 
the  defamatory  words.] 

18  Penal  Code  964. 

"  People  V.  Collins,  102  Cal.  345. 

"  In  re  Kowalsky,  73  Cal,  120;  People  v.  Miller,  122  Cal.  93. 


CHAPTER  XXXV 


I^IQTJORS,  BBLl^ING  XO  INDIANS. 

[Penal   Code,   sec.  397.] 


DEFINITION. 

Is  the  sale  or  giving  of  intoxicating  liquors  to  Indians 
of  full  blood  without  reference  to  the  question  whether  they 
have  or  have  not  adopted  the  habits  of  civilization  or  sepa- 
rated themselves  from  tribal  relations,  or  have  become 
citizens  of  the  United  States.^ 

The  act  was  intended  to  apply  to  Indians  as  a  class  and 
was  enacted  in  view  of  their  well-known  race  peculiarities 
and  is  not  in  conflict  with  any  provision  of  the  constitution 
of  the  United  States  or  of  this  state. ^  It  is  general  and 
uniform  in  its  operation  because  it  affects  in  the  same  manner 
all  persons  belonging  to  the  class  to  which  it  refers ;'  nor  does 
it  deprive  any  citizen  of  his  privileges  and  immunities  as 
such.* 

INDICTMENT. 

The  indictment  need  not  allege  the  name  of  the  Indian 
to  whom  the  liquor  was  furnished.  And,  an  allegation  of 
furnishing  intoxicating  liquors  at  the  same  time  and  place 
to  two  Indians  states  but  a  single  offense,  and  where  the 
proof  shows  sale  to  only  one  Indian,  it  is  no  variance.'  The 
indictment  may  allege  the  furnishing  and  the  causing  to  be 
furnished  as  one  offense.® 

1  People  V.  Bray,  105  Cal.  345, 

2  People  V.  Bray,  105  Cal.  345. 
^              3  Ex  parte  Smith,  38  Cal.  710. 

4  People  V.  Bray,  105  Cal.  345. 
0  People  V.  Faust,  113  Cal.  172. 
6  People  V.  Gusti,  113  Cal.  177, 


232  CRIMINAL  LAW  AND  PROCEDURE. 

PENALTY. 

Imprisonment  in  state  prison  or  in  county  jail  not  exceed- 
ing two  years,  or  by  fine  not  exceeding  one  thousand  dol- 
lars, or  both. 

FORM — SELLING    LIQUOR    TO    INDIANS. 

Wilfully,  unlawfully  and  feloniously  did  sell  and  furnish 
and  cause  to  be  furnished  intoxicating  liquors  to  wit,  wine 
[or  other  liquor,  naming  it]   to  an  Indian.'^ 

MANSLAUGHTER,     see     HOMICIDE. 

T  People  V.  Faust,  113  CaL  172;    People  v.  Gusti,  113  Cal. 
177. 


CHAPTER  XXXVI. 


IVIAYHKM. 

[Penal  Code,  sees.  203-4.] 


DEFINED. 

Mayhem  is  the  unlawful  and  malicious  depriving  of  a 
human  being  of  a  member  of  his  body,  or  disabling,  dis- 
figuring or  rendering  it  useless,  or  cutting  or  disabling 
the  tongue,  or  putting  out  an  eye,  or  sliting  the  nose,  ear 
or  lip.^  Malice  aforethought  is  not  an  ingredient  of  the 
crime  and  proof  of  premeditation  or  deliberation  is  not 
required ;  but  it  is  sufficient  to  prove  the  commission  of  the 
act,  from  which  the  law  will  presume  malice,  though  it  be 
done  in  pursuance  of  an  intent  formed  during  a  mutual 
combat,  unless  the  evidence  show  circumstances  constituting 
self  defense.^  But  the  biting  is  not  equivalent  to  the  sliting 
of  the  lip,  as  a  bite  may  not  amount  to  mayhem.^  But  the 
biting  off  of  an  ear  of  a  human  being  is  mayhem,*  and  the 
crime  includes  an  assault,^  but  where  the  evidence  shows 
the  defendant  guilty  of  mayhem,  or  of  no  offense,  it  is  proper 
to  instruct  the  jury  that  they  cannot  find  defendant  guilty 
of  any  less  offense  than  that  charged.*'  The  name  by  which 
the  person  injured  was  commonly  known,  although  not  his 
true  name,  may  be  shown  where  he  has  assumed  the  name 
by  which  he  was  described  in  the  indictment  for  the  pur- 
poses of  shielding  his  family.' 

1  People  V.  Wright,  93  Cal.  565. 

2  People  V.  Wright,  93  Cal.  565. 

3  People  V.  Demasters,  105  Cal.  669. 

4  People  V.  Golden,  62  Cal.  542. 

5  People  V.  Wright,  93  Cal.  565;   People  v.  Demasters,  105 
Cal.  669. 

6  People  V.  Wright,  93  Cal.  565. 

7  People  V.  Plyler,  121  Cal.  160. 


234  CRIMINAL  LAW  AND  PROCEDURE. 

PENALTY. 

Imprisonment  in  state  prison  not  exceeding  fourteen  years. 

FORxM — ASSAULT  TO  COMMIT  MAYHEM. 

Wilfully,  unlawfully  and  feloniously  did  assault  one  C 
D,  with  intent  to  commit  mayhem.* 

FORM — MAYHEM. 

Unlawfully,  maliciously  and  feloniously  did  assault  one  C 
D,  a  human  being,  and  deprive  the  said  C  D  of  a  portion 
of  a  member  of  his  body,  to  wit,  a  portion  of  his  ear  [or 
other  member,  naming  it],  by  unlawfully,  maliciously  and 
feloniously  biting  off  the  same,  thereby  disfiguring  [or  dis- 
abling or  rendering  useless]  the  said  member. 

ANOTHER   FORM. 

Unlawfully,  maliciously  and  feloniously  did  assault  one  C 
D,  a  human  being,  and  put  out  one  of  the  eyes  [or  slit  the 
nose,  ear,  or  lip]  of  the  said  C  D. 

8  People  V.  Demasters,  105  Cal.  669. 


CHAPTER  XXXVII. 


MEUICINK. 

[Statutes  1875-6,  p.  792;   Statutes  1877-8,  p.  -18.1 


'■  DEFINED. 

Medicine,  unlawfully  practiced,  is  the  practicing  of  medi- 
cine without  first  having  obtained  a  license  so  to  do.  A 
person  who  professes  publicly  to  be  a  physician,  or  who 
habitually  prescribes  for  the  sick,  or  who  appends  to  his 
name  the  letters  M.  D.,  is  to  be  regarded  as  practicing  medi- 
cine within  the  meaning  of  the  statute.  But  this  act  does 
not  prohibit  gratuitous  services  in  cases  of  emergency. 

EMERGENCY. 

An  emergency  which  would  justify  a  person  practicing 
medicine  without  a  certificate,  within  the  meaning  of  the 
law,  is  a  case  where  a  regular  and  qualified  physician  is 
not  readily  obtainable.  And  the  fact  that  a  sick  person  has 
been  given  up  as  incurable  by  a  physician  of  the  schools,  does 
not  create  an  emergency.^ 

THE  LICENSE, 

The  burden  is  upon  the  defendant  to  show  a  license,  and, 
in  the  absence  of  such  proof,  it  must  be  presumed  that  he 
had  not  procured  one.  It  is  not  necessary  for  the  prose- 
cution to  negative  this  fact  as  it  is  one  peculiarly  within 
the  knowledge  of  the  defendant.^  Neither  must  the  infor- 
mation allege  the  existence  of  a  medical  society  named  in 
the  statute,^  nor  plead  the  statute  by  its  title  or  name.* 

1  People  V.  Lee  Wah,  71  Cal.  80. 

2  People  V.  Boo  Doo  Hong,  122  Cal.  606. 

3  People  V.  Boo  Doo  Hong,  122  Cal.  606;  People  v.  O'Leary^ 
77   Cal.   30. 

*  People  V.  O'Leary,    77    Cal.    30. 


236  CRIMINAL  LAW  AND  PROCEDURE. 

PENALTY. 

Fine  of  from  fifty  to  five  hundred  dollars  or  imprisonment 
in  county  jail  from  thirty  to  three  hundred  and  sixty-five 
days,  or  both ;  but  to  file  or  attempt  to  file  a  fraudulent  cer- 
tificate or  diploma,  is  punishable  as  forgery. 

FORM. 

Then  and  there  being  in  the  county  of  ,  w^ilfully 

and  unlawfully  did  practice  medicine  in  said  county ;  that 
prior  to  said  time,  said  A  B  had  not  procured  a  certificate 
to  so  practice  from  one  of  the  boards  of  medifcal  examiners 
appointed  by  the  medical  society  of  the  state  of  California, 
the  eclectic  medical  society  of  the  state  of  California,  or  the 
California  state  homeopathic  medical  society,  and  prior  to 
said  time  said  A  B  had  not  procured  a  certificate  to  practice 
medicine  granted  by  the  board  of  examiners,  appointed  by 
the  California  state  medical  society  of  homeopathic  prac- 
titioners, and  the  said  A  B  was  not  at  said  time  a  lawfully 
commissioned  surgeon  of  the  United  States  army  or  navy, 
practicing  his  profession  within  the  limits  of  the  state  of 
California.'* 

MISCARRIAGE,  see  ABORTION. 

MUTINY,      DISTURBING,      see      DISTURBANCES     OF     THE 

PEACE. 

fi  People  V.  O'Leary,  77  Cal.  30. 


CHAPTER  XXXVIIL 
t 


^/IISDKIVIKANOR  IN  OFF^ICE. 

[Penal  Code,   sec.  772.] 


DEFINED. 


Misdemeanor  in  office  is  the  charging  and  collecting  of 
illegal  fees ;  or  neglecting  or  refusing  to  perform  the  duties 
of  an  office.^  This  section  provides  for  a  removal  of  public 
officers  by  summary  proceeding.^  It  contemplates  proceed- 
ings founded  upon  a  written  accusation  of  a  private  person, 
and  not  upon  a  public  indictment  or  information  brought  in 
the  name  of  the  people.^  The  proceeding  lies  only  against 
one  in  office  and  not  against  one  whose  term  has  expired.* 
The  summary  manner  of  the  trial  of  civil  officers  under  this 
section  excludes  the  right  of  trial  by  jury;  and  the  provis- 
ion of  the  constitution  that  "the  right  of  trial  by  jury  shall 
be  secured  to  all,  and  remain  inviolate,"  refers  generally  to 
those  cases  in  which  the  right  of  trial  by  jury  existed  at 
common  law,  at  the  time  of  the  adoption  of  the 
constitution,  and  does  not  include  new  offices  created 
by  the  statutes  after  the  adoption  of  the  constitution, 
or  the  case  where  the  legislature  creates  an  office  and  subjects 
the  incumbent  to  a  trial  for  his  official  misconduct  without 
a  jury.^  The  constitution,  after  enumerating  certain  officers 
and  providing  for  their  impeachment,  expressly  provides  that 
all  other  civil  officers  shall  be  tried  for  misdemeanor  in  office 

1  Penal  Code  772. 

2  In  re  Marks,  45  Cal.  199;  In  re  Curtis,  108  Cal.  661. 

3  Woods  V.  Varnum,  85  Cal.  639;  In  re  Marks,  45  Cal.  199, 
*  Woods  V.  Varnum,  85  Cal.  639. 

5  Woods  V.  Varnum,  85  Cal.  639. 


238  CRIMINAL  LAW  AND  PROCEDURE. 

in  such  manner  as  the  legislature  may  provide.*'  This  sec- 
tion contemplates  a  criminal  and  not  a  civil  prosecution/  in 
the  nature  of  an  impeachment,*  and  is  limited  to  district, 
county  and  township  officers,  and  does  not  include  a  state 
officer.®  A  judgment  thereunder  is  final,  from  which  an 
appeal  does  not  lie.^°  It  does  not  apply  to  a  failure  of  an 
officer  to  reside  in  the  county  seat,  but  only  the  acts  to  be 
performed  in  his  official  capacity." 

PENALTY. 

Removal  from  office,  and  a  judgment  of  five  hundred 
dollars  in  favor  of  the  informer,  and  such  costs  as-are  allowed 
in  civil  cases. 

MONUMENTS,  DEFACING,  see  SEPULCHER. 

MURDER,  see  HOMICIDE. 

OFFICERS,    REMOVAL   OF,   see    MISDEMEANOR    IN    OFFICE. 

6  Woods  V.  Varnum,  85  Cal.  639;  In  re  Marks,  45  Cal.  199. 
This  doctrine  has  been  doubted,  however,  in  Morton  v. 
Broderick,  118  Cal.  474,483,  where  the  court  said  in 
speaking  of  prosecutions  under  this  section,  that,  "  if 
criminal,  then  indisputably  defendants  were  denied  a 
right  reserved  to  them  and  to  all  by  the  constitution 
of  the  state,  namely,  that  all  prosecutions  shall  be  con- 
ducted in  the  name  and  by  authority-  of  the  People  of 
the  state  of  California,  and  not  by  private  persons." 
And  in  Pitch  v.  Board  of  Supervisors,  122  Cal.  285,  288, 
in  construing  a  similar  statute,  declared:  "  The  provis- 
ion in  the  section  that  the  penalty  may  be  imposed,  '  at 
the  suit  of  any  interested  party '  is,  however,  inconsist- 
ent with  section  20  of  article  VI  of  the  constitution, 
which  is:  'The  style  of  a  process  shall  be,  "The  People 
of  the  state  of  California,"  and  a  prosecution  shall  be 
conducted  in  their  name  and  by  their  authority.'  "  And 
it  might  also  be  suggested  that  this  proceeding  is  a 
denial  of  the  constitutional  right  of  a  trial  by  jury. 

^  Kilburn  v.  Law,  111  Cal.  237. 

8  In  re  Curtis,  108  Cal.  661. 

»  Kilburn  v.  Law,  111  Cal.  237. 

10  In  re  Curtis,  108  Cal.  661;  People  v.  Donnell,  110  Cal. 
655;  Morton  v.  Broderick.  118  Cal.  485. 

11  Ex  parte  Harrold,  47  Cal.  129. 


CHAPTER  XXXIX. 


PERJURY. 

[Penal  Code,  sees.  118-128.] 


DEFINED. 


Perjury  is  the  crime  of  testifying  falsely  before  any  com- 
petent tribunal,  ofificer  or  person,  in  any  case  in  which  an 
oath  may  be  by  law  administered,  to  any  material  matter 
known  to  be  false. ^  The  elements  of  the  offense  are:  (i) 
A  judicial  proceeding  or  course  of  justice;  (2)  The 
defendant  having  been  sworn  to  give  evidence  therein;  (3) 
His  testimony;  (4)  Its  falsity  and  knowledge  on  the  part 
of  the  defendant  that  it  was  false;  and  (5)  Its  materiality 
to  the  issue  or  point  of  inquiry.^  The  intent  to  swear  falsely 
is  one  of  the  necessary  elements  of  the  crime.^  The  testi- 
mony must  be  wilfully  false.*  There  can  be  no  wilful 
perjury  where  the  witness  is  honestly  mistaken  in  his  tes- 
timony, or  the  oath  is  according  to  the  belief  and  conviction 
of  the  witness  as  to  its  truth.  While  an  unqualified  state- 
ment of  that  which  one  does  not  know  to  be  true  is  equi- 
valent to  a  statement  of  that  which  one  knows  to  be  false, 
yet  it  must  be  shown  that  such  statement  was  made  wilfully, 
that  is,  with  a  consciousness  that  it  was  not  known  to  be  true 
and  with  the  intent  that  it  should  be  received  as  a  statement 
of  what  was  in  fact  true.^  Perjury  cannot  be  predicated 
upon  the  promise  in  an  oath  of  office  as  to  the  future  per- 
formance of  official  duties.®    It  is  no  defense  to  a  prosecution 

1  Penal  Code  118. 

2  People  V.  Barry,  63  Cal.  62. 

3  People  V.  Rodley,  131  Cal.  240. 

4  People  V.  Turner,  122  Cal.  679. 

5  People  V.  Von  Tiedeman,  120  Cal.  128. 

6  Penal  Code  120. 


240  CRIMINAL  LAW  AND  PROCEDURE. 

for  perjurv  that  the  oath  was  administered  or  taken  in  ao 
irregular  manner,^  nor  that  the  accused  was  not  competent 
to  give  the  testimony.* 

MATERIALITY  OF  THE  TESTIMONY. 

The  false  testimony  must  be  material  to  the  issue,"  and 
therefore  prejudicial  to  some  one.^"  And  it  must  be  shown 
to  have  been  material  at  the  time  it  was  given."  Its  mater- 
iality is  a  question  of  law  for  the  court,  and  it  is  the  duty  of 
the  court  to  instruct  the  jury  as  to  what  facts  would  show 
material  testimony.^^  Any  of  the  matters  which  circum- 
stantially tend  to  prove  the  issue  are  material,  and  any  evi- 
dence tending  in  a  material  degree  to  strengthen  the  case 
of  a  party  to  an  action  is  material."  Thus  in  a  murder  case, 
that  the  deceased  was  seen  alive  after  the  murder  alleged,  is 
material,  and,  if  false,  will  form  the  basis  of  perjury.^*  And 
the  denial  of  having  made  a  different  statement  is  material, 
as  it  affects  the  credibility  of  the  witness.^^  Admissions  of 
the  killing  do  not  render  immaterial  the  testimony  as  to  the 
facts  occuring  at  the  homicide,  otherwise  material  to  the 
issue,  as  to  whether  the  defendant  was  probably  guilty  of 
the  crime. ^°  A  notary  public  has  a  right  to  examine  a 
person  under  oath  who  represents  he  is  a  grantor  in  a  deed, 
and,  if  he  testifies  falsely  to  such  fact,  it  is  a  material  fact.^' 
Testimony  on  the  probate  of  a  forged  will  is  material.^* 
Perjury  may  be  predicated  upon  an  oath  to  an  inventory  in 

T  Penal  Code  120. 
8  Penal  Code  122. 

»  People  V.  McDermott,   8   Cal.    288;    People   v.    Jones,    123 
Cal.    299;    People   v.    Ah   Sing.    95    Cal.    657;    People   v. 
Perazzo,  64  Cal.  106. 
10  People  V.  Jones,  123  Cal.  299. 
"  People  V.  Lem  You,  97  Cal.  224. 

12  People  V.  Clementshaw,  59  Cal.  385;  People  v.  Lem  You, 
97  Cal.  224. 

13  People  V.  Von  Tiedeman,  120  Cal.  128. 
1*  People  V.  Green,  54  Cal.  592. 

15  People  V.  Barry,  63  Cal.  62. 

16  People  V.  Hitchcock,  104  Cal.  482. 
IT  Ex  parte  Carpenter,  64  Cal.  263. 
18  People  V.  Rodley,  131  Cal.  240. 


PEBJUBY.  241 

an  insolvency. proceeding-,^"  notwithstanding  that  the  insol- 
vency act  makes  it  a  misdemeanor,^"  upon  the  oath  to  be 
registered  as  a  voter,*^  and  upon  an  affidavit  of  proof  of 
publication  used  in  a  probate  proceeding.^^  But  the  crime 
is  not  shown  until  the  affidavit  is  used  or  delivered  to 
another  for  use.^^  An  affidavit  of  justification  to  a  bail 
bond  containing  a  list  of  property  following  the  affidavit 
of  justification  with  no  connection  with  the  affidavit,  will 
not  sustain  the  charge.^*  A  false  oath  as  to  ownership  is 
not  perjury  where  the  only  proof  negativing  ownership  in 
the  defendant  was  a  deed  to  the  property  showing  title  in 
another  man  a  year  before.^^  Perjury  does  not  include  an 
estimate  by  a  bank  cashier  of  the  standing  of  the  bank  in 
absence  of  a  showing  that  there  was  a  wilful  failure  to 
exercise  honest  judgment.^®  And  a  qualification  on  a  bail 
bond  for  larcenv.  where  the  commitment  is  for  robbery,  will 
not  sustain  a  charge  of  perjury;"  neither  will  a  false  oath 
in  a  land  office  of  the  United  States  on  a  prosecution  in 
the  state  court. ^*  It  is  no  defense  that  the  accused  did  not 
know  the  materiality  of  the  false  statement  made  by  him,  nor 
that  it  did  not,  in  fact,  affect  the  proceedings  in  or  for  which 
made.  It  is  sufficient  that  it  was  material  and  might  have 
been  used  to  affect  such  proceeding.^^ 

PROCURING  FALSE  EVIDENCE.'" 

To  constitute  this  oflEense  there  must  be  an  intent  to  pro- 
duce false  evidence  for  a  fraudulent  and  deceitful  purpose. 
Carelessness,  however  gross,  does  not  show  such  intent.'^ 

19  People  V.  Naylor,  82  Cal.  607;  People  v.  Robles,  117  Cal. 
684. 

20  People  V.  Piatt,  67  Cal.  21. 

21  People  V.  Waite,  102  Cal.  251. 

22  People  V.  Rodley,  131  Cal.  240. 

"    23  People  V.  Robles,   117  Cal.   681;    People  v.   Maxwell,   118 
Cal.  51. 

24  People  V.  Bartman,   81   Cal.    200. 

25  People  V.  Strassman,   112  Cal.   683. 

26  In  re  Howell,  114  Cal.  250. 

2T  People  V.  Strassman,    112   Cal.   683. 

28  People  V.  Kelly,    38    Cal.    145. 

29  Penal  Code  123. 

30  Penal  Code  132-138. 

31  People  V.  Brown,   74   Cal.   306. 


CRIMES--16 


242  CRIMINAL  LA-W  AND  PROCEDURE. 

'  •  '  THE  OATH. 

"The  form  of  the  oath  is  not  material,^*  but  the  authority 
"to  administer  the  oath  is  essential;  and  where  the  judge  of 
a  superior  court  sits  as  a  magistrate,  the  clerk  of  the  court 
has  no  authority  to  administer  the  oath.^'  The  authority  to 
administer  is  a  question  of  fact  to  be  established  by  the 
people  at  the  trial.'*  The  oath  in  an  insolvency  proceeding 
is  taken  when  the  papers  are  filed  at  the  instance  of  the 
defendant.^° 

I  EVIDENCE. 

Evidence  of  circumstances  alone,  without  positive  testi- 
mony of  a  witness  to  facts  absolutely  incompatible  with  the 
innocence  of  the  accused,  is  insufficient  to  justify  a  con- 
viction.^® The  testimony  of  two  witnesses,  or  one  witness 
and  the  corroborating  circumstances,  is  essential  to  convic- 
tion.^^ One  witness  uncorroborated  is  not  sufficient  to  con- 
vict,'^ but  the  direct  evidence  of  two  witnesses,  or  one  wit- 
ness and  corroborating  circumstances,  is  required  only  upon 
the  question  as  to  the  falsity  of  the  testimony.^®  Admissions 
which  do  not  go  directly  to  the  matter  charged  but  only  to 
collateral  matters  from  which  the  jury  is  to  draw  inferences 
of  guilt  will  not  sustain  the  charge.*"  The  complaint  in  the 
proceeding  in  which  the  false  testimony  is  alleged  to  have 
been  given,  is  admissible  to  show  the  pendency  of  the  case.*^ 
Parol  evidence  of  what  the  accused  swore  to  before  the 
magistrate  is  admissible.*^  For  the  purpose  of  showing  the 
materiality  of  the  alleged  false  festimony,  the  testimony  given 
at  the  trial  at  which  the  perjury  was  committed  may  be 
proved  by  persons  other  than  the  one  who  gave  it.*'    On  a 

32  People  V.  Rodley,   131   Cal.   240. 

33  People  V.  Cohen,    118    Cal.    74. 

8<  People  V.  De   Carlo,    124   Cal.    462. 

88  People  V.  Maxwell,    118    Cal,    50.  « 

36  People  V.  Porter,    104   Cal.   415. 

3T  People  V.  Wells,    103    Cal.    631;    People   v.    Porter,    104 

Cal.  418;  People  v.  Maxwell,  118  Cal,  54. 
38  People  V.  Davis,   61   Cal.   536. 
30  People  V.  Rodley,   131   Cal.   240. 
*o  People  V.  Maxwell,   118   Cal.   50. 
*i  People  V,.  Lee  Fat,   54   Cal.   527. 
<2  People  V.  Curtis,  50  Cal,  95;  People  v.  Herbert,  61  Cal. 

546. 
<3  People  V.  Lem   You,   97   Cal.   224. 


PERJURY.  243 

trial  of  a  charge  for  perjury,  there  is  a  presumption  in  favor 
of  the  validity  of  the  election  and  the  qualification  of  the 
justice  of  the  peace  who  administered  the  oath  and  these 
matters  cannot  be  questioned  by  the  defendant.**  The 
reporter's  notes  of  the  alleged  false  testimony,  taken  through 
an  interpreter,  are  inadmissible,*''  but  otherwise,  when  the 
interpreter  was  present  at  the  trial,  and  testified  to  the  cor- 
rectness of  the  deposition.*''  Jurisdiction  of  the  court  in 
which  the  false  testimony  was  given,  is  determined  from 
the  record ;  and,  where  the  decree  contains  all  the  necessary 
recitals  to  show  jurisdiction  over  the  matter,  an  irregularity 
in  the  proceeding  will  not  avail  the  accused.*'^ 

SUBORNATION   OF   PERJURY.*^ 

All  the  elements  constituting  the  crime  of  perjury  are 
necessary  to  this  crime.  It  is  necessary  to  show  that  the 
issue  upon  which  the  false  testimony  was  given  was  material, 
and  that  the  evidence  of  the  suborned  witness  was  material 
to  that  issue;  that  the  statements  made  by  the  witness  were 
not  only  false  in  fact,  but  that  he  knew  them  to  be  false,  and 
the  party  procuring  him  to  make  such  statement  knew  that 
it  would  be  intentionally  and  wilfully  false  on  the  part  of 
the  witness.*^ 

INDICTMENT. 

It  must  allege  that  the  testimony  was  wilfully  false,^"  and 
state  all  the  essential  elements  of  the  crime."^  A  direct 
allegation  cannot  be  supplied  by  intendment  or  implication; 
and  facts  stated  by  way  of  argument,  recital  or  inference, 
are  insufficient  f-  they  must  be  alleged  affirmatively,  directly 
and  positively.^^  The  allegation  of  the  materiality  of  the 
oath  must  be  made :  or  facts  alleged  showing  that  it  was 

*4  People  V.  De  Carlo,  124  Cal.   462. 

45  People  V.  Lee  Fat,  54  Cal.  527. 

46  People  V.  Slerp,    116    Cal.    250. 

47  People  V.  Rodley,    131    Cal.    240. 

48  Penal  Code  127. 

49  People  V.  Ross,    103    Cal.    425. 

50  People  V.  Turner,    122    Cal.    679. 

51  People  V.  Ross,    103   Cal.    425. 

52  People  V.  Jones,    123    Cal.    299. 

53  People  V.  Dunlap,  113  Cal.  72. 


244  CRIMINAL  LAW  AND  PROCEDURE. 

material."  Allegations  of  jurisdiction  need  only  be  in 
general  terms,  and  need  not  set  forth  the  facts  on  which  the 
jurisdiction  depends.'*'  The  jurisdiction  of  the  officer  to 
administer  the  oath  must  also  be  alleged.''®  Materiality  of 
the  testimony  may  be  alleged  in  general  terms  without  speci- 
fying any  particular  issue  upon  which  it  was  material,  or 
showing  how  it  was  material,"^  unless  it  affirmatively  appears 
from  other  averments  that  it  was  immaterial.'*^  There 
are  two  modes  by  which  the  materiality  of  the  alleged  false 
statement  may  be  shown  in  the  pleading:  (i)  By  setting 
forth  the  nature  of  the  issue  and  the  evidence  given  thereon, 
so  that,  as  a  matter  of  law,  it  may  be  said  the  testimony  upon 
which  the  perjury  is  assigned  is  material  to  the  issue;  (2) 
By  showing  an  action  at  issue  in  a  court  of  competent  juris- 
diction, the  testimony  given,  its  wilful  and  felonious  falsity, 
coupled  with  the  averment  that  it  was  material  to  the  issue."*' 
The  indictment  must  charge  the  defendant  with  false  aver- 
ments contrary  to  his  oath,  knowing  the  same  to  be  false 
and  that  he  wilfully  and  contrary  to  such  oath,  stated  as 
true  a  material  matter  which  he  knew  to  be  false. 
The  statement  that  the  defendant  committed  wil- 
ful perjury  is  a  mere  conclusion  of  law.®"  In  an 
indictment  for  subornation  of  perjury  it  is  necessary 
not  only  to  show  that  the  issue  upon  which  the  false  testi- 
mony was  given  was  material,  but  also  to  show  that  the  evi- 
dence of  the  suborned  witness  was  material  to  that  issue, 
either  by  direct  averment,  or  by  stating  evidence  given  by 
the  witness,  which  the  court  can  judicially  see  was 
material."     The  indictment  must  allege  that  the  defendant 

M  People  V.  Kelly,    59    Cal.    372;    People   v.    Ah    Bean,    77 

Cal.   15. 
50  People  V.  De  Carlo,  124  Cal.  462. 
50  People  V.  Howard,   111   Cal.   655;    People   v.   Cohen,   118 

Cal.  74. 

57  People  V.  Rodley,    131    Cal.    240;    People    v.    De    Carlo, 
124  Cal.  462. 

58  People  V.  Brilliant,   58   Cal.   214. 
50  People  V.  Ah   Bean,   77   Cal.   12. 
eo  People  v.  Turner,  122  Cal.  679. 
81  People  V.  Ross,   103   Cal.   425. 


PERJURY.  245 

was  sworn,  that  he  would  testify,  depose  or  certify  truly 
before  a  competent  tribunal."^ 

PENALTY. 

Perjury  and  subornation  of  perjury,  ordinarily ,  imprison- 
ment in  state  prison  from  one  to  fourteen  years.  If  it  pro- 
cures the  conviction  and  execution  of  an  innocent  person,  is 
punishable  by  death.  Falsifying  evidence ,  imprisonment  in 
the  state  prison  not  exceeding  five  years,  except  that  prevent- 
ing a  witness  from  attending  a  trial  or  practicing  fraud  or 
deceit  on  a  witness  or  destroying  or  concealing  documentary 
evidence  is  punishable  by  imprisonment  in  county  jail  not 
exceeding  six  months  or  fine  not  exceeding  five  hundred 
dollars,  or  both. 

FORM PERJURY. 

Heretofore,  to  wit,  on  the  —  day  of ,  190 — ,  in  the 

county  of  ,  state  of  California,  a  certain  criminal 

action  known  as  "The  People  etc.  v.  C  D,  No.  — ,"  in  which 
C  D  was  charged  with  petit  larceny,  alleged  to  have  been 

committed  in  said  county  on  the  —  day  of  , 

190 — ,  came  on  regularly  to  be  tried  in  due  form  of  law  and 
was  then  and  there  tried  by  A  C  P,  who  was  then  and  there 
the    duly    elected,    qualified    and    acting    justice    of    the 

peace    of    township,    in    said    county    and    state, 

and  a  jury  of  said  township  and  county  in  that  behalf 
duly  sworn,  upon  which  said  trial  the  said  defend- 
ant, A  B,  appeared  as  a  witness  for  and  in  behalf 
of  said  defendant  C  D,  and  was  then  and  there  duly  sworn 
before  said  justice  of  the  peace,  and  said  jury,  in  open  court, 
that  the  evidence  which  he,  the  said  A  B,  should  give  to  the 
said  court  then  and  there,  and  to  the  jury  so  sworn  as  afore- 
said, touching  the  matters  then  in  question  in  the  trial  of 
said  criminal  action,  should  be  the  truth,  the  whole  truth 
and  nothing  but  the  truth ;  and  on  the  trial  of  said  criminal 
action  it  became  material  to  inquire  where  the  said  C  D  was 

on  the  —  day  of ,  190 — ,  at  which  time,  as  it  appeared 

from  the  evidence,  the  said  crime  of  petit  larceny  charged 

02  People  V.  Simpton,  133  Cal.  367. 


246  CRIMINAL  LAW  AND  PROCEDURE. 

in  the  criminal  complaint  in  said  action  was  committed,  and 
the  said  A  B  then  and  there  falsely,  knowingly,  maliciously, 
wilfully  and  corruptly  testified  in  substance  as  follows,  to 

wit :  That  during  all  of  the  time  between  the  —  day  of , 

190 — ,  and  the  —  day  of ,  190 — ,  the  said  A  B  was  in 

company  with  the  said  C  D  in  the  city  of ,  in — 

county,  California,  and  in  truth  and  in  fact'  the  said 
A    B    was    not    in    the    company    of    the    said    C    D    in 

said    city    of    ,    in    county,    California,    or 

in    the    company    of    the    said    C    D    at    all,    during    all 

of   the   time   between    the    said   —    day    of    ,    190 — , 

and    the    said    —    day    of    ,    190 — ,    or    during    any 

portion  of  the  said  time  between  said  dates,  as  he,  the  said 
A  B  then  and  there  well  knew  in  said  justice  court  of  said 

township  at  the  time  of  the  making  in  court  of  said 

false  statements ;  And  said  oath  was  duly  and  legally  admin-" 
istered  to  the  said  A  B  on  the  —  day  of  — ; — ,  190 — ,  in  said 
justice  court  by  the  said  A  C  P,  who  was  a  duly  elected, 
qualified  and  acting  justice  oi  the  peace  in  and  for  said  town- 
ship, and  who  had  then  and  there  competent  authority  to 
administer  such  an  oath  in  such  matters  and  proceedings, 
and   particularly  in   said  criminal  action  known  as   "The 

People  V.  C  D,  No. ;"  And  said  false  statements  so 

made  as  aforesaid  under  oath  in  the  manner  and  form  as 
aforesaid  were  then  and  there  material  to  the  issues  therein 
involved  in  the  trial  of  the  said  criminal  action,  known  as 
the  People  v.  C  D,  No. . 

FORM — SUBORNATION  OF  PERJURY. 

[Set  out  a  charge  of  perjury  as  in  preceding  form  atid 
continue  as  follows]  : 

And  one,  E  F  at  and  in county,  California,  on  or 

about  the  —  day  of ,  190 — ,  did  well  know  the  testimony 

so  given  by  the  said  A  B  as  aforesaid  was  knowingly,  wil- 
fully and  corruptly  false,  and  did  feloniously,  wilfully  and 
corruptly,  suborn,  incite  and  procure  the  said  A  B,  being 
sworn  as  aforesaid,  feloniously,  knowingly,  wilfully,  cor- 
ruptly and  falsely  to  testify  as  aforesaid ;  and  in  truth  and  in 
fact  as  both  the  said  A  B  and  the  said  E  F  then  and  there 


PERJURY.  247 

well  knew,  both  at  the  time  of  the  corrupt  procurement  of 
the  said  wilfully  false  and  corrupt  testimony  as  aforesaid 
by  the  said  E  F  from  the  said  A  B  and  at  the  time  of  the 
giving  of  the  said  false  testimony  by  the  said  A  B  as  afore- 
said, the  said  A  B  was  not  in  the  company  of  the  said  C  l) 

in, the  said  city  of in county,  California,  or 

in  the  company  of  the  said  C  D  at  all,  during  all  of  the  time 
between  said  — i  day  of  — —,  190 — ,  and  the  said  —  day  of 
— — ,  190 — ,  or  during  any  portion  of  said  time  between  said 
dates,  and  the  said  E  F  did  feloniously,  corruptly,  know- 
ingly and  wilfully  procure  the  said  A  B  to  testify  falsely 
and  corruptly  as  aforesaid  before  the  said  false  testimony 
was  given  in  said  justice  court  as  aforesaid. 

PERSONATION,   see    FALSE   PERSONATION. 


•CHAPTER  XL. 


POIvUUTION  OF  WATER. 

[Penal  Code,  sec.  874.] 


POLLUTION  GF  WATER  SUPPLY. 

Wilfully  and  unlawfully  did  keep  a  large  number  of 
sheep,  to  wit,  about  two  thousand  sheep,  penned  and  cor- 
ralled in,  over  and  on  the  banks  of  that  certain  stream  of 

water  known  as  the ,  so  that  by  reason  of  keeping  said 

sheep  so  penned  and  corralled  as  aforesaid  the  waters  of  said 
stream  then  and  there  became  polluted ;  and  from  which 
said  stream  water  was  then  and  there,  ever  since  has  been, 
and  now  is,  drawn  for  the  supply  of  the  inhabitants  of  the 

town  of ,  said  town  being  then  and  there  a  town  in 

the  state  of  California.^ 

PRISON,  see   ESCAPES. 

PRIZE    FIGHTS,  see   DISTURBANCES   OF   THE    PEACE. 

PROFANITY,  see  DISTURBANCES  OF  THE  PEACE. 

PROSITUTION,   see   SEDUCTION. 

1  People  V.  Borda,    105    Cal.    637. 


CHAPTER  XLI. 


RAF»E. 

[Penal  Code,  sees.  261-264.] 


DEFINED. 


It  is  an  act  of  sexual  intercourse,  accomplished  with  a 
female  not  the  wife  of  the  perpetrator,  when  such  female  is 
under  the  age  of  sixteen  years,  or  is  incapable  from  unsound- 
ness of  mind  of  giving  legal  consent  or  when  resistance  is 
overcome  by  force  and  violence,  or  when  will  is  overcome 
by  drugs  administered  by  the  perpetrator,  or  when  she  is 
unconscious,  or  submits  by  reason  of  fraud  which  induces 
her  to  believe  that  the  person  committing  the  act  is  her 
husband.^ 

CONSENT. 

After  the  prosecutrix  reaches  the  age  of  consent,  some 
force  or  intimidation  must  be  shown  or  want  of  consent.* 
Force  is  a  necessary  element  of  the  crime  and  distinguishes 
from  seduction.^  Words  of  solicitation  and  blandishments 
do  not  amount  to  force,  and  when  the  prosecutrix  secumbs 
to  them,  she  has  consented,  and  it  is  not  rape.*  But  under  a 
charge  of  rape  by  force  and  violence,  evidence  to  show  com- 
mission by  means  of  intoxicating  and  narcotic  substances 
is  admissible.^  and  when  the  charge  is  of  rape  of  a  female 
under  age  of  consent,  proof  may  be  made  of  any  other  of 
the   acts   constituting  the   offense.®     When   the   female   is 

1  Penal  Code  261. 

2  People  V.  Stewart,    85    Cal.    174;    People    v.    Brown,    47 
Cal.  447;   People  v.  Fleming,  94  Cal.  312. 

3  People  V.  Royal,  53  Cal.  62. 

4  People  V.  Fleming,    94    Cal.    308. 

5  People  V.  Snyder,    75    Cal.    323. 

6  People  V.  Vann,    129    Cal.    118. 


250  CRIMINAC  LAW  AND  PROCEDURE. 

under  the  age  of  consent,  a  want  of  consent  need  not  be 
shown.^  The  law  resists  for  her,®  and  force  is  not  an  element 
of  the  offense,"  as  she  is  presumed  incapable  of  consenting.^" 
Legal  consent  presupposes  an  intelligence  capable  of  under- 
standing the  act,  its  nature  and  probable  consequences.  And 
if  the  female  is  of  unsound  mind  resistance  and  consent  are 
immaterial."  The  absence  of  outcry  and  immediate  dis- 
closure of  the  outrage  are  not  material  when  the  female 
is  under  the  age  of  consent.'-  The  object  of  the  statute 
in  fixing  an  arbitrary  age  of  consent,  is  the  protection  of 
society  by  protecting  from  violation  the  virtue  of  young  and 
unsophisticated  girls.  Although  the  assault  ordinarily  implies 
force  by  the  assailant,  and  resistance  by  the  one  assaulted,  it 
is  not  true  where  the  girl  is  under  the  age  of  consent." 

PENETRATION. 

The  slightest  penetration  is  sufficient  to  constitute  the 
oflfense.'*  In  instructing  the  jury,  the  court  need  not  use 
the  word  sexual  penetration,  penetration  being  sufficient  to 
describe  the  act." 

EVIDENCE. 

To  impeach  her,  it  is  proper  to  show  that  the  prosecutrix 
had  declared  an  intent  to  get  the  defendant  into  state 
prison.'"  The  consummation  of  the  offense  may  be  proved 
by  circumstances  and  surroundings,  and  the  relationship  of 

T  People  V.  Stewart,   85    Cal.    174;    People    v.    Verdegreen, 

106  Cal.  211;   People  v.  Webster,  111  Cal.  383;  People  v. 

Ranged,  112  Cal.  669j   People  v.  Lourintz,  114  Cal.  629; 

People  V.  Gomez,  118  Cal.  328. 
8  People  V.  Vann,  129  Cal.  118;   People  v.  Gordon,  70  Cal. 

467;     People    v.    Verdegreen,    106    Cal.    211;    People    v.' 

Gomez,   118   Cal.  328. 
0  People  V.  Bene,    130    Cal.    159;    People    v.    Fleming.    94 

Cal.    308;    People   v.   Johnson,   131   Cal.   511;    People   v. 

Roach,    129   Cal.    33;    PeGp:e    v.    Ranged,   112   Cal.   669; 

People  V.   Lourintz,  114  Cal.  628. 

10  People  V.  Verdegreen,  106  Cal.  214;   People  v.  Lourintz, 
114  Cal.  630. 

11  People  V.  Griffin,    117    Cal.    383. 

12  People  V.  Lee,   119   Cal.   84. 

13  People  V.  Verdegreen,  106  Cal.  211. 

1*  People  V.  Chavez,   103   Cal.   407;    People   v.   Rangod,   112 

Cal.   669. 
15. People  V.  Rangod,   112  Cal.   669. 
16  People  V.  Lambert,   120   Cal.    170. 


RAPE.  261 

the  parties  may  be  shown  to  prove  that  the  prosecutrix  had 
a  right  to  trust  the  defendant.^'^  Evidence  of  the  proportion 
of  the  false  to  true  charges  in  rape  cases  is  not  proper.^® 
In  a  prosecution  where  the  female  is  under  the  age  of  con- 
sent, pregnancy  is  sufficient  proof  of  the  corpus  delicti  to 
authorize  the  admissions  of  the  defendant.^"  In  case  of 
mental  infirmity  of  the  prosecutrix  of  long  standing,  the 
past,  present  and  continued  existence  of  such  a  condition 
may  be  shown.^°  Evidence  showing  merely  a  possible  oppor- 
tunity for  the  commission  of  the  offense  by  the  defendant,  but 
not  excluding  a  reasonable  opportunity  for  another,  is  not 
sufficient  to  convict.-^ 

AGE  OF  PROSECUTRIX. 

The  age  of  the  prosecutrix  is  one  of*  fact,  and  the  jury 
is  not  bound  to  believe  the  testimony  of  the  prosecutrix 
on  that  subject,  even  though  uncontradicted.^^  To  establish 
the  age  of  the  female,  her  mother  may  refresh  her  memory 
by  aid  of  entries  in  the  family  bible,  and  the  physician  who 
attended  at  the  birth  may  use  his  cash  book  for  that  pur- 
pose,^^  but  such  entries  are  not  the  best  evidence  and  are 
admissible  only  where  no  person  can  speak  from 
knowledge.^*  Testimony  of  the  prosecutrix  is  admissible  not- 
withstanding the  knowledge  of  her  own  age  was  gained 
from  statements  of  her  parents ;  and  entries  in  the  family 
bible  are  admissible  no  matter  in  whose  hand.^^  Alterations 
in  the  entries  are  questions  for  the  court.^" 

UNCORROBORATED  TESTIMONY  OF  PROSECUTRIX. 

When  the  testimony  of  the  female  is  inherently  improbable 

if  it  is  not  corroborated,  it  will  not  support  a  conviction.^' 

1"  People  V.  Mayes,  66  Cal.  597. 
18  People  V.  Bene,  130  Cal.  159. 
10  People  V.  Tarbox,    115    Cal.    57. 

20  People  V.  Griffin,   117  Cal.   583. 

21  People  V.  Tarbox,    115    Cal.    57. 

22  People  V.  Webster,   111   Cal.   381. 

23  People  V.  Vann,    129    Cal.    118. 

SI  People  V.  Mayne,   118   Cal.   517;    People  v.   Johnson,  106 

Cal.    289. 
25  People  V.  Ratz,    115    Cal.    132. 
2"  People  V.  Mayne,.  118   Cal.   516. 
2T  People  V.  Hamilton,    46    Cal.    540;     People    v.    Ardaga, 

51    Cal.   372;    People   v.    Castro,    60    Cal.    118;    People   v. 

Kaiser,  119  Cal.  458;    People  v.  Benson,  6  Cal.  221. 


2fi^  CRIMINAL  LAW  AND  PROCEDURE. 

But  if  the  circumstances  are  probable  and  the  story  reason- 
able it  may  be  sufficient  alone  to  convict.-*  The  fact  that 
she  made  a  public  statement  of  the  outrage  soon  after  its 
occurrence,  and  the  defendant  was  seen  coming  from  her 
room  at  an  unseemly  hour,  are  sufficient  corroboration.'^" 

COMPLAINT. 

The  complaint  of  the  outrage  shortly  thereafter  by  the 
prosecutrix  is  admissible  but  not  the  particulars  of  it.  It 
is  no  part  of  the  res  gestae;  it  is  only  a  fact  corroborative 
of  her  testimony.  The  rule  is  to  admit  evidence  of  the  fact 
of  the  complaint  in  all  cases,  and  in  no  case  to  admit  any- 
thing more.  The  evidence  when  restricted  to  this  extent  is 
not  hearsay,  but  in  the  strictest  sense  original  evidence. 
When,  however,  these  limits  are  exceeded,  it  becomes  hear- 
say in  a  very  objectionable  form.  There  is  every  reason, 
therefore,  why  it  should  be  admitted  to  the  extent  indicated 
and  none  why  it  should  be  admitted  further.  The  usual 
course  is  to  ask  the  prosecutrix  whether  she  made  any  com- 
plaint, and,  if  so,  to  whom,  and,  if  she  mentions  a  person 
to  whom  she  made  complaint,  to  call  such  person  to  prove 
the  fact.  But  it  has  been  the  invariable  practice  not  to 
permit  either  the  prosecutrix  or  the  person  so  called,  to  state 
the  particulars  of  the  complaint  in  chief.^°  The  statement 
made  by  the  assaulted  child  cannot  be  testified  to  by  another, 
even  though  the  child  be  incompetent  as  a  witness  by  reason 
of  tender  years.^^  Absence  of  outcry  and  of  indications  of 
violence,  with  no  immediate  disclosure,  are  strong  circum- 
stances tending  to  disprove  the  charge  and  exonerate  the 
■defendant  from  the  charge  of  force.^-  But  it  is  not  con- 
as  People  V.  Mayes,  66  Cal.  597;  People  v.  Stewart,  90  Cal. 
213;  People  v.  Mesa,  93  Cal.  584;  People  v.  Fleming, 
94  Cal.  310;  People  v.  Gardner,  98  Cal.  130;  People  v. 
Gomez,  118  Cal.  326. 
20  People  V.  Rangod,   112  Cal.   669. 

30  People  V  .Mayes,  66  Cal.  597;  People  v.  Tierney,  67  Cal. 
55;  People  v.  Stewart,  97  Cal.  241;  People  v.  Barney, 
114  Cal.  556;  People  v.  Lambert,  120  Cal.  172;  People 
V.  Baldwin,  117  Cal.  251;   People  v.  Snyder,  75  Cal.  323. 

31  People  V.  Graham,   21   Cal.   26. 

32  People  V.  Benson,  6  Cal.  221;  People  v.  Hamilton,  46 
Cal.   543;    People  v.   Ardago,   51   Cal.   372. 


I 


RAPE.  253 

elusive  to  disprove  the  charge,^^  as  the  reason  for  silence 
may  be  shown. ^^  A  long  delayed  complaint,  however,  is 
not  admissible.^' 

PHYSICAL   CONDITION. 

The  absence  of  the  hymen  may  be  testified  to  by  an  adult 
female  who  knows  what  the  hymen  is,  and  it  is  not  necessary 
that  she  be  a  physician  or  skilled  physiologist  to  render  her 
competent.^"  The  mother  may  state  the  result  of  an  exam- 
ination of  the  child  made  by  her.^'^  The  subsequent  con- 
dition of  the  sexual  organs  may  be  shown,  and  the  appear- 
ance of  the  prosecutrix,  shortly  after  the  assault,  is  also 
admissible  as  bearing  on  the  effect  of  the  acts  charged.^® 

OTHER  ACTS  OF   INTERCOURSE. 

The  evidehce  is  not  confined  to  one  date,  if  the  witness 
does  not  testify  to  acts  on  such  date,  which  amount  to 
rape,^°  but  evidence  of  previous  cruelty  to  prosecutrix  is 
not  admissible  to  prove  a  putting  in  fear.***  The  testimony 
of  neighbors  as  to  the  beating  of  the  prosecutrix  by  the 
defendant  is  admissible  to  corroborate  her  testimony  as  to 
cruel  treatment  and  fear.*^  Where  the  prosecution  was  for 
crime  committed  on  a  girl  under  the  age  of  consent,  evidence 
of  other  acts  of  intercourse  with  the  prosecuting  witness 
is  admissible.*^  When  in  such  cases  a  single  act  is  charged 
upon  a  particular  date,  and  a  series  of  acts  of  sexual  inter- 
course proved,  the  prosecution  must  select  the  particular 
act  relied  upon,'*-'^  and  notify  the  defendant  at  the  com- 
mencement of  the  trial  as  to  the  particular  act  upon  which 
the  prosecution  intends  to  rely.  Unless  this  is  done  the 
first  evidence  which  tends  in  any  degree  to  prove  an  offense 

33  People  V.  Kuches,    120    Cal.    566. 
v34  People  V.  Mayes,    66    Cal.    597. 
35  People  V.  Lambert,    120    Cal.    170;    People   v.    Hamilton^ 

46  Cal.  543. 
3'!  People  V.  Barney,  114  Cal.  554. 
3T  People  V.  Baldwin,  117  Cal.  244. 

38  People  V.  Bene,    130    Cal.    159. 

39  People  V.  Manahan,    32    Cal.    68. 
'40  People  V.  Tyler,  36  Cal.  522. 

■»i  People  V.  Lenon,    79    Cal.    625. 
42  People  V.  Ranged,    112    Cal.    669. 
42a  People  V.  Castro,  133  Cal.  11. 


254  CRIMINAL  LAW  AND  PROCEDURE. 

will  be  deemed  a  selection  and  unless  proved  the  defendant 
must  be  acquitted.*-**  When  a  date  is  selected  and  notice 
thereof  given  evidence  both  before  and  after  may  be  intro- 
duced as  tending-  to  sustain  it.*^*^. 

UNCHASTE  CHARACTER. 

Previous  lewdness  of  the  prosecutrix  is  admissible,  though 
proof  of  particular  acts  are  preferable  to  geneial  reputation. 
They  are  not  admissible,  however,  to  impeach  her  as  a 
witness  but  to  show  consent  by  destroying  the  presumption 
of  greatest  reluctance  and  resistance.*'  But  while  the 
reputation  for  chastity  and  particular  acts  of  unchastity  are 
generally  admissible  for  the  purpose  of  showing  the 
probability  of  consent,  they  are  not  admissible  in  pros- 
ecutions where  the  female  is  under  the  age  of  consent.** 
Intercourse  with  others  may  also  be  shown  for  the  same 
purpose,***  but  not  indecencies  of  speech  not,  accompanied 
with  lewd  behavior.'"  The  prosecutrix  cannot  testify  as 
to  her  previous  chastity  on  direct  examination.  It  is 
inferred  from  absence  of  evidence  to  the  contrary,  and  can 
only  be  admitted  in  rebuttal,*'^  but  such  testimony  is  not 
admissible  to  prove  innocence  of  specific  acts  of  incon- 
tinence.*® 

INCAPACITY   TO   COMMIT. 

If  the  defendant  is  incapable  of  consummating  the  sex- 
ual act  it  is  a  defense,**  and  the  testimony  of  a  physician 
may  be  admitted  to  show  that  it  would  have  been  phy- 
sically impossible  to   commit  the  act   in   the  manner  tes- 

<2b  People  V.  Williams,  133  Cal.  165. 

42C  People  V.  Castro,  133  Cal.  11. 

<3  People  V.  Benson,  6  Cal.  221;  People  v.  Harlan,  13a  Cal. 
16. 

**  People  V.  Johnson,  106  Cal.  289;  People  v.  Hartman, 
103  Cal.  242;  People  v.  Bene,  130  Cal.  159;  People  v.  Har- 
lan. 133  Cal.  16. 

45  People  V.  Shea,  125  Cal.  151;  People  v.  Benson,  6  Cal. 
221;    People  v.  Johnson,  106  Cal.  289. 

48  People  V.  Kuches,   120   Cal.    566. 

*^  People  v.  O'Brien,  130  Cal.  1;  People  v.  Tyler,  36  Cal, 
522;    People  v.  Kuches,  120  Cal.  571. 

48  People  V.  O'Brien,    130    Cal.    1. 

4»  People  V.  Wessel,  98  Cal.  352. 


RAPE.  255 

tified  to  by  the  prosecutrix,^*'  but  not  expert  testimony  as 
to  possibility  of  forcible  rape.'*^ 

ASSAULT  TO   RAPE. 

In  a  charge  of  assault  to  rape  a  female  under  age'  of 
consent,  it  is  not  necessary  to  show  that  the  defendant 
intended  to  gratify  his  passion  at  all  events,  or  to  use  force; 
but  it  is  enough  that  he  intended  to  have  intercourse  and 
took  steps  towards  that  end.^  But  where  the  female  is 
above  such  age,  the  crime  is  not  shown  unless  the  evidence 
establishes  a  settled  purpose  on  the  part  of  the  defendant 
to  use  all  necessary  force.-  The  uncorroborated  testimony 
of  the  prosecutrix  is  sufficient  to  establish  the  charge.' 
And  the  abandonment  of  the  intent,  before  the  consumma- 
tion of  the  act,  by  reason  of  the  approach  of  others  or  by 
reason  of  the  pains  of  a  stricken  conscience,  is  no  defense.* 
The  intent  is  a  question  of  fact,  and  while  a  specific  intent 
to  have  intercourse  is  necessary,  indecent  advances  or  the 
prostitution  of  the  mind  of  a  female  child  under  the  age 
of  consent  show  such  intent.^  Intent  is  to  be  judged  by 
the  conduct  of  the  defendant,  not  by  that  of  the  pros- 
ecutrix.® A  simple  assault  is  not  an  element  of  the  offense, 
when  whatever  took  place  was  with  the  willingness  of  the 
female.^  An  attempt  to  commit  rape  is  distinguished  from 
an  assault  with  intent  to  commit.* 

INDICTMENT. 

It  need  not  be  alleged  that  the  force  and  violence  was 

50  People  V.  Baldwin,   117   Cal.    244. 

51  People  V.  Bene,   130   Cal.   59. 

1  People  V.  Johnson,    131    Cal.    511. 

2  People  V.  Fleming,  94  Cal.  308;  People  v.  Stewart,  97 
Cal.  240;  People  v.  Kuches,  120  Cal.  568;  People  v. 
Gardner,    98    Cal.    130. 

3  People  y.  Fleming,  94  Cal.  308;  People  v.  Gardner,  98 
Cal.  127;  People  v.  Stewart.  90  Cal.  212;  People  v. 
Mesa,    93    Cal.    585;    People    v.    Mayes,    66    Cal.    597. 

*  People  V.  Stewart,  97  Cal.  238;  People  v.  Johnson,  131 
Cal.   511. 

5  People  V.  Johnson,  131  Cal.  511;  People  v.  Stewart,  97 
Cal.  238. 

6  People  V.  Roach,   129    Cal.    33. 

7  People  V.  Gomez,    118   Cal.   326. 

8  People  V.  Gardner,  98  Cal.   127. 


256  CRIMINAL  LAW  A»D  PROCEDURE. 

against  the  resistance  of  the  female."  Neither  is  it  nec- 
essary to  allege  the  age  of  the  perpetrator  or  any  facts 
showing  his  capacity  to  commit  the  offense.  These  are 
matters  of  defense,  unless  the  indictment  shows  on  its 
face  the  contrary.^"  It  is  not  essential  to  allege  the  female 
was  not  the  wife  of  the  accused."  Two  ofifenses  are  not 
charged  where  a  rape  and  an  assault  to  commit  are  both 
charged.*^  An  assault  to  commit  the  offense  is  not  stated 
by  alleging  that  the  accused  feloniously  assaulted  a  female 
by  throwing  her  on  her  back  and  attempting  to  have  sexual 
intercourse  with  her  with  intent  to  outrage  her.^^ 

PENALTY. 

Rape,  imprisonment  in  state  prison  not  less  than  five 
years;  assault  with  intent  to  commit  rape,  imprisonment 
in  state  prison  from  one  to  fourteen  years. 

FORM — ASSAULT   TO   COMMIT. 

Unlawfully,  feloniously  and  with  force  and  violence  did 
assault,  with  intent  to  commit  rape,  one  C  D,  a  female 
child  under  sixteen  years  of  age,  and  without  her  consent 
and  against  her  will.^* 

FORM UNDER    AGE   OF    CONSENT. 

Wilfully,  unlawfully  and  feloniously  did  have  sexual 
intercourse  with  one  C  D,  the  said  C  D  being  then  and 
there  a  female  child  under  the  age-  of  sixteen  years,  and 
not  being  then  and  there  the  wife  of  the  said  A  B. 

FORM BY   FORCE. 

Wilfully,  unlawfully  and  feloniously  upon  one  C  D,  a 

female  not  the  wife  of  the  said  A  B,  did  make  an  assault, 

o 
and  the  said  C  D  forcibly  and  against  her  will  and  consent, 

feloniously   did   ravish   and  carnally  know,  the   said  C  D 

then   and   there   resisting  all   the  time,   but  her  resistance 

being  overcome  by  the  force  and  violence  of  said  A  B. 

»  People  V.  Brown,   47   CaL   447. 

10  People  V.  Ah   Yek,    29    Cal,    576;    People   v.    Wessel,    98 
Cal.   353. 

11  People  V.  Estrado,  53  Cal.  600. 

12  People  V.  Tyler,   35  Cal.   553. 
'••'  People  V.  O'Neil,   48   Cal.    257. 
n  People  V.  Mesa,    93    Cal.    583. 


CHAPTER  XLIL 


RECEIVING  STOLEN  GOODS. 

[Penal  Code,  sees.  496-497.] 


DEFINED. 

At  common  law,  a  person  who  for  his  own  gain  or  to 
prevent  the  owner  from  again  possessing  his  property  buys 
and  receives  any  personal  property,  knowing  the  same  to 
have  been  stolen,  would  be  an  accessory  after  the  fact  to 
the  larceny.  But  under  our  statute  he  is  punishable  in 
such  cases  for  receiving  stolen  goods.^  It  is  a  different 
offense  from  either  larceny  or  of  an  accessory  after  the 
fact.*  The  crime  also  covers  the  receiving  of  goods  pro- 
cured by  embezzlement*  and  by  robbery.* 

WHAT  ACTS  SUFFICIENT. 

The  defendant  must  have  received  the  goods  for  his  own 
gain,  or  to  prevent  the  owner  from  again  possessing  hi^ 
property,  knowing  them  to  have  been  stolen.^  The  receiver 
is  liable  although  he  did  not  receive  all  of  the  property 
stolen ;  and  the  grade  of  the  offense  does  not  depend  on  the 
value  of  the  property  received.*  Where  a  foreman  of  a 
warehouse  without  authority  to  sell,  sells  to  the  defendant, 
who  receives  the  goods  knowing  such  fact,  he  is  guilty  of 
receiving  stolen  goods.''     The    guilty    knowledge  may  be 

1  People  V.  Stakem,    40    Cal.    599. 

^  People  V.  Ward,    105    Cal.    652;    People    v.    Hawkins,   34 

Cal.   181. 
3  People  V.  Perini,    94    Cal.    573. 
*  People  V.  Shepardson,   48   Cal.   189. 

5  People  V.  Avila,  43  Cal.   196;    People  v.  Ribolsi,  89  Cal. 
499;    Penal  Code  496. 

6  People  V.  Fitzpatrick,  80  Cal.  538. 
T  People  V.  Perini,    94    Cal.    573. 

ORIMES--17 


258  CRIMINAL  LAW  AND  PROCEDURE. 

inferred  from  the  inadequate  price  paid,  or  the  irresponsi- 
bility of  the  vendor  and  other  such  Hke  circumstances.' 
The  burden  of  proving  the  intent  is  on  the  prosecution 
throughout.®  But  when  the  property  consists  of  jewelry, 
silver  or  plated  ware,  or  articles  of  personal  ornament,  if 
purchased  or  received  from  a  person  under  the  age  of 
•eighteen,  unless  sold  by  such  minor  at  a  fixed  place  of  busi- 
:ness,  carried  on  by  said  minor,  or  his  employer,  it  is  pre- 
sumptive evidence  that  the  property  was  stolen.^"  Where, 
however,  the  defendant  had  no  connection  with  the  stealing 
of  the  property  and  did  not  know  that  it  had  been  stolen 
at  the  time  of  his  getting  possession,  of  the  same,  he  is  not 
guilty.  The  receiving  in  good  faith  in  such  a  case  is  imma- 
terial, and  the  defendant  is  not  bound  to  establish  it.^^  If 
the  defendant  had  no  knowledge  of  the  crime  prior  to  its 
commission,  but  afterwards  received  the  stolen  goods  he 
cannot  be  convicted  of  larceny.^-  Where  the  evidence 
shows  only  the  receiving  of  stolen  goods,  the  question  of 
whether  the  defendant  knew  the  goods  were  stolen  is  to  be 
determined  from  all  the  facts  of  the  case.  He  is  required 
to  use  the  circumspection  usual  by  persons  taking  goods 
by  purchase;  and  this  is  imminently  the  case  with  dealers 
buying  at  greatly  depreciated  rates.  That  which  a  man 
in  defendant's  position  ought  to  have  suspected,  he  must 
be  regarded  as  having  suspected,  as  far  as  was  necessary  to 
put  him  on  guard  and  on  his  inquiries.  The  proof  in  any 
case  is  to  be  inferential,  and  among  the  inferences  promi- 
nent are  inadaquacy  of  price  and  irresponsibility  of  the 
vendor  or  depositor.^^  It  is  necessary  that  the  goods  the 
defendant  is  charged  with  receiving  shall  be  shown  to  have 
been  stolen  goods;  but  the  stealing  is  sufficiently  shown  by 

8  People  V.  Clausen,   120  Cal.   381. 

9  People  V.  Ribolsi,  89  Cal.  492;   People  v.  Perini,  94  Cal. 
575. 

10  Penal  Code  496. 

11  People  V.  Ward,    105    Cal,    652. 

12  People  V.  Maxwell,  24  Cal.  14;   People  v.  Ward,  105  Cal. 
652. 

13  People  V.  Clausen,   120   Cal.   381;    People  v.    Hertz,   105 
Cal.  663. 


RECEIVING   STOLEN   GOODS.  259 

the  testimony  of  the  owner  and  the  thief.     Thus,  the  thief 
may  become  an  accomplice  in  receiving  the  stolen  goods." 

EVIDENCE. 

The  failure  to  enter  the  purchase  of  the  goods  in  a  book, 
as  required  by  law,  is  a  part  of  the  res  gestae,  and  admis- 
sible.^'* The  proof  of  the  stealing  is  sufficiently  shown  by  the 
testimony  of  the  owner  and  of  the  thief."  The  burden  of 
the  proof  is  on  the  prosecution  throughout.^''  Guilty 
knowledge  is  inferred  by  inadaquacy  of  price  or  irresponsi- 
bility of  the  vendor.^^  It  need  not  be  shown  that  the 
defendant  received  all  of  the  stolen  property.^* 

VENUE. 

When  larceny  is  in  one  county  and  the  stolen  goods  are 
received  in  another  county,  the  receiver  of  the  stolen  goods 
cannot  be  convicted  of  larceny  where  the  crime  was  com- 
mitted.^o 

PENALTY. 

The  offense  is  a  felony  or  misdemeanor  according  to  the 
nature  of  the  judgment  imposed  by  the  court;  and  the 
defendant  may  be  punished  by  imprisonment  in  the  state 
prison  not  exceeding  five  years,  or  in  the  county  jail  not 
exceeding  six  months,  or  by  both. 

INDICTMENT. 

The  indictment  need  not  state  the  name  of  the  thief,'* 
nor  need  it  allege  the  value  of  the  property.^^  It  is  suffi- 
cient if  it  charges  that  the  defendant  received  the  stolen 
property  for  his  own  gain,  knowing  it  to  have  been  stolen.^^ 

1*  People  V.  Clausen,   120  Cal.   381. 

15  People  V.  Clausen,    120    Cal.    383. 

16  People  V.  Clausen,   120   Cal.   383. 

IT  People  V.  Ribolsi,   89   Cal.   49;    People  v.   Perini,   94  Cal. 
475. 

18  People  V.   Clausen,  120   Cal.   381. 

19  People  V.  Fitzpatrick,    80    Cal.    538. 

20  People  V.  Stakem,   40   Cal.   599. 

21  People  V.  Ribolsi,   89   Cal.   499;    People  v.  Avila,   43   Cal. 
196;    People  v.    Clausen,    120   Cal.   383. 

22  People  V.  Rice,    73    Cal.   220. 

23  People  V.  Avila,  43  Cal.   196;    People  v.  Ribolsi,  89  Cal. 
499. 


260  CRIMINAL  LAW  AND  PROCEDURE. 

FORM — RECEIVING   STOLEN    PROPERTY. 

Wilfully,  unlawfully  and  feloniously,  and  for  his  own 
gain,  did  receive  [or  buy]  one  watch,  of  the  personal  prop- 
erty of  C  D,  which  had  been  previously  stolen,  and  the  said 
A  B  then  and  there  well  knowing  the  same  to  have  been 
feloniously  stolen." 

REGISTRATION,    FRAUDULENT,    see    ELECTION    LAWS. 
REMOVAL   FROM    OFFICE,  see   MISDEMEANOR    IN    OFFICE. 

24  People  V,  Avila,  43  CaL  196;   People  v.  Ribolsi,  89  CaL 
499. 


CHAPTER  XLIII. 


RESISTANCE  OE  PUBI^IC  OEEICERS 

[Penal    Code,    sec.    148.] 


DEFINED. 
It  is  the  wilfull  resisting,  delaying  or  obstructing 
any  public  officer  in  the  discharge  or  attempt  to  discharge 
any  duty  of  his  office.^  Resisting  arrest  does  not  always 
constitute  the  use  of  physical  force ;  a  person  may  resist 
arrest  by  fleeing  from  an  officer  attempting  to  arrest  him." 
And  this,  though  the  officer  did  not  inform  the  person  to  be 
arrested,  of  his  intention  to  make  the  arrest,  where  it  is 
clear  that  he  knew  the  officer  had  called  for  that  purpose.' 
But  one  who  is  not  a  peace  officer  has  no  right  to  arrest 
another  for  a  misdemeanor  not  committed  in  his  presence. 
And  the  person  whom  he  attempts  to  arrest  has  a  right  to 
resist,  and  is  justified  in  an  assault  made  in  an  attempt 
to  free  himself  from  such  illegal  restraint.* 

INDICTMENT. 

The  manner  and  means  of  the  obstruction,  resistance  or 
delay  need  not  be  alleged,  as  they  are  matters  of  evidence. 
And  when  the  information  is  for  resisting  an  officer  in  thQ 
service  of  a  warrant  of  arrest,  it  is  not  necessary  to  set  out 
the  facts  which  constitute  the  offense  for  which  the  warrant 
was  issued.^     But  it  must  allege  that  the  offense  was  com- 

1  Penal  Code  148. 

2  People  V.  Brooks,    1-31    Cal.    315;    People   v.    Kilvington, 
104  Cal.  86. 

3  People  V.  Hawkins,  127  Cal.  372. 
*  People  V.  Denby,  108  Cal.  54. 

5  People  V.  Hunt,   120  Cal.   281. 


262  CRIMINAL  LAW  AND  PROCEDURE. 

mitted  in  the  county,  or  show  that  the  justice  had  jurisdic- 
tion to  issue  the  warrant." 

PENALTY. 

When  no  other  punishment  is  prescribed,  a  fine  not 
exceeding  five  thousand  dollars  and  imprisonment  in  the 
county  jail  not  exceeding  five  years. 

FORM. 

Wilfully,  unlawfully  and  feloniously  did  resist,  delay  and 
obstruct  one  C  D  in  the  discharge  and  attempt  to  discharge 
his  duties  as  a  public  officer,  the  said  C  D  being  then  and 
there  a  duly  elected,  qualified  and  acting  sheriff  [or  other 

officer,  naming  him]   of  the  county  of  ,  and  being 

then  and  there  engaged  as  such  officer  in  arresting  one 
E  F,  who  was  then  and  there  wilfully  and  unlawfully  dis- 
turbing the  peace,  [or  other  duty,  stating  it.]^ 

RIOT,   see    DISTURBANCES    OF    THE    PEACE. 

8  People  V.  Craig,   59  Cal.  370. 
T  People  V.  Hunt,   120  Cal.   281. 


CHAPTER  XLIV. 


ROBBKRY. 

[Penal    Code,    sees.    211-213.] 


DEFINED, 

The  crime  is  the  felonious  taking  of  personal  property 
in  the  possession  of  another  from  his  person  or  immediate 
presence  and  against  his  will,  accomplished  by  means  of 
force  or  fear.  The  fear  may  be  either  of  unlawful  injury 
to  the  person  or  property  of  the  one  robbed,  or  any  relative 
or  member  of  his  family ;  or  of  an;  immediate  and  unlawful 
injury  to  the  person  or  property  of  any  one  in  the  company 
of  the  person  robbed  at  the  time  of  the  robbery.^  Rob- 
bery is  distinguished  from  larceny  from  the  person,  by  the 
presence  or  absence  of  force  or  fear  in  the  taking.^  It  has 
all  the  essential  ingredients  of  larceny  and  more.^  And  a 
defendant  under  an  indictment  for  robbery  may  be  con- 
victed of  larceny.*  There  are  no  degrees  in  robbery."*^ 
Robbery  under  the  code  is  practically  the  same  as  at  com- 
mon law.®  But  it  may  be  accomplished  by  means  of  kid- 
napping, threats  of  torture  and  death.^ 

OWNERSHIP  BY  ANOTHER. 

Ownership  of  property  must  be  proved  in  some  person 

1  Penal  Code  211-213. 

2  People  V.  Church,   116    Cal.   300. 

3  People  V.  Jones,  53  Cal.  58;  People  v.  Crowley,  100 
Cal.  480;  People  v.  Ammerman,  118  Cal.  25;'  People  v. 
Church,    116    Cal.    300. 

■i  People  V.  Nelson,  56  Cal.  77;  People  v.  Jones,  53  Cal. 
58;  People  v.  Chuey  Ying  Git,  100  Cal.  439;  People 
V.    Crowley,   100   Cal.    480. 

5  People  V.  Gilbert,   60    Cal.    108. 

6  People  V.  Shuler,    28   Cal.   490. 

7  People  V.  Winthrop,   118   Cal.    85. 


264  CRIMINAL  LAW  AND  PROCEDURE. 

Other  than  the  accused.*  And  the  owner  of  the  property  is 
not  guilty  of  robbery  in  taking  it  from  the  person  in  pos- 
session." But  it  may  be  accomplished  by  taking  property 
from  another,  although  the  person  from  whom  it  was  taken 
was  not  the  owner.^**  Where  the  proof  show,*  part  of  the 
money  belonged  to  other  persons  than  alleged  in  the  indict- 
ment, it  is  no  variance.*^  And  a  variance  as  to  ownership 
does  not  vitiate  the  information  for  robbery.^^ 

VALUE    OF     PROPERTY. 

The  property  must,  as  in  larceny,  be  alleged  to  have  some 
value,  but  it  is  not  necessary,  as  in  larceny,  to  allege  the 
value  of  the  property  for  the  purpose  of  determining  the 
punishment,  as  the  punishment  does  not  depend  upon  the 
value  of  the  property  taken." 

TAKING  FROM  THE  PERSON. 

There  must  be  not  only  a  taking  of  the  property,  but  it 
must  be  a  taking  from  the  person  of  another.^*  And 
where  taken  from  the  person  it  sufficiently  shows  it  was 
taken  from  the  possession  also.^° 

AGAINST  THE  OWNER^S  WILL. 

Where  the  taking  was  with  force,  the  law  presumes  that 
it  was  taken  against  the  will  of  the  party  from  whom  it 
was  taken.^* 

INJURY  TO  PERSONS  IN  COMPANY. 

As  was  seen  by  the  definition,  where  the  fear  of  the  injury 
is  to  any  person  in  the  immediate  company  of  the  person 
robbed,  it  is  robbery ;  so  the  boarding  of  a  train  with  intent 

8  People   V.   Shuler,   28   Cal.   494;    People   v.   Ammerman, 

118  Cal.  27. 
»  People  V.  Vice,   21   Cal.    344. 
10  People  V.  Anderson,  80  Cal.  205;   People  v.  Ammerman, 

118   Cal.    25. 
"  People  V.  Clark,   106   Cal.   32. 

12  People  V.  Anderson,   80  Cal.   205;    People  v.   Ribolsi,  89 
Cal.   497. 

13  People  V.  Chuey   Ylng   Git,    100    Cal.    437. 

"  People  V.  Shuler,    28    Cal.    490;    People    v.    Ammerflxan, 

118  Cal.   25. 
16  People  V.  Walbridge,   123   Cal.   273. 
i«  People  V.  Riley,  75  Cal.   98. 


ROBBERY.  266 

to  take  control  thereof  from  the  employees,  by  force  and 
intimidation,  and  commit  larceny  or  robbery  thereon,  is  a 
robbery  of  the  passenger  train.^^  The  pointing  of  a  pistol 
at  several  persons  riding  with  the  person  robbed  and  rob- 
bing them  is  one  act  of  robbery." 

THE   INTENT. 

The  intent  is  a  question  for  the  jury.^^  It  must  appear 
in  robbery,  as  in  larceny,  that  the  goods  were  taken  animo 
furandi,  and  with  intent  to  deprive  the  person  of  them  per- 
manently.^" 

EVIDENCE. 

The  evidence  must  show  the  locus  delicti;  and,  where 
there  is  no  evidence  of  the  county  in  which  the  crime 
was  committed,  the  conviction  cannot  be  sustained. ^^  It 
is  proper,  where  evidence  shows  the  robbery  was  by  means 
of  both  force  and  fear  to  the  person  who  is  robbed, 
for  the  court  to  explain  the  fear  by  means  of  which  the 
taking  is  constituted  robbery. ^^  The  pointing  of  a  pistol  at 
several  persons  riding  with  the  person  robbed  is  a  part  of 
the  res  gestae  and  admissible.^^  The  witness  may  testify 
to  his  understanding  of  the  actions  of  the  accused,  even 
though  he  could  not  understand  his  language.^*  The 
defendant  on  trial  may  be  compelled  to  stand  up  for  com- 
parison.-^ The  possession  of  the  stolen  property  may  be 
taken  into  consideration  in  determining  the  guilt  of  the 
accused. -°  But  the  person  who  only  receives  the  fruits 
of  the  robbery  is  not  guilty  of  robbery.^^  And  the  pos- 
session of  burglar's  tools  is  not  admissible  to  prove  robbery 

IT  People  V.  Lovren,    119    Cal.    88. 
18  People  V.     Nelson,    85    Cal.    421. 
i»  People  V.  Woody,    48   Cal.    81. 
ao  People  v.  Keefer,   65    Cal.    232. 

21  People  V.  Tarpey,    59    Cal.    371. 

22  People  V.  O'Brien,    88    Cal.    483. 

23  People  V.  Nelson,  85  Cal.  421. 

24  People  V.  Clark,   106   Cal.   32. 

25  People  V.  Ollveria,   127    Cal.    376;    People   v.    Goldenson, 
76   Cal.    347. 

2c  People  V.  Ettlng,    99    Cal.    577;    People    v.    Abbott,    101 

Cal.    647. 
2T  People  V.  Shepardson,   48   Cal.   189. 


266  CRIMINAL  LAW  AND  PROCEDURE. 

merely  because  a  prior  conviction  of  burglary  is  included 
in  the  indictment.^*  The  possession  of  the  stolen  property 
recently  after  the  robbery  is  a  circumstance  showing 
guilt."  Where  all  the  evidence  shows  that  defendant,  if 
guilty  of  any  crime,  is  guilty  of  robbery  and  not  larceny, 
it  is  proper  for  the  court  to  so  instruct  the  jury.^° 

INDICTMENT. 

The  ownership  of  the  property  must  be  pleaded.^^  It 
must  be  alleged  that  the  property  taken  was  owned 
by  another  person.''^  But  the  charge  that  the  property  was 
taken  from  one  person  and  another  person  was  the  owner 
is  sufficient.^^  Money  may  be  described  as  lawful  money 
of  the  United  States.^*  The  indictment  must  state  that  the 
property  was  taken  from  the  person  of  another;  it  is  not 
sufficient  to  say  it  was  taken  from  another  person.^"  And 
where  it  is  alleged  the  robbery  was  accomplished  by  means 
of  force  and  fear,  it  is  unnecessary  to  allege  the  property 
was  taken  without  the  consent  of  the  person  robbed.'* 
And  the  allegation  that  it  was  taken  from  the  person  suffi- 
ciently shows  that  it  was  in  his  possession. ^^ 

PENALTY. 

Imprisonment  in  state  prison  not  less  than  one  year." 

FORM ROBBERY. 

In  and  upon  one  C  D  did  make  an  assault,  and  thereby 

28  People  V.  Sansome,  84  Cal,  449. 

a-'  People  V.  Clough,  59  Cal.  438;  People  v.  Velarde,  59 
Cal.   464. 

30  People  V.  O'Brien,   88  Cal.   483. 

31  People  V.  Ammerman,    118    Cal.    23. 

32  People  V.  Vice,  21  Cal.  345;  People  v.  Ammerman,  118 
Cal.  25;  People  v.  Shuler,  28  Cal.  494;  People  v.  Hughes, 
41   Cal.    237. 

33  People  V.  Shuler,  28  Cal.  490;  People  v.  Ammerman, 
118  Cal.  25. 

34  People  V.  Riley,  75   Cal.   98. 

35  People  V.  Beck,   21    Cal.    386. 
30  People  V.  Riley,    75    Cal.    98. 

37  People  V.  Walbridge,  123  Cal.  273;  People  v.  Shuler,  28 
Cal.   490. 

38  People  V.  Winthrop,  118  Cal.  85;  People  v.  Clary,  72 
Cal.  59;   Penal  Code  213. 


ROBBERY.  267 

did  place  him,  the  said  C  D,  in  bodily  fear  and  danger  of 
his  life,  and  did  then  and  there  feloniously  and  unlawfully 

take  from  the  said  C  D,  dollars  in  gold  and  silver 

coin  of  the  United  States  of  America;  all  of  which  money 
was  then  and  there  in  the  possession  of  said  C  D,  and  was 
then  and  there  the  property,  goods  and  chattels  of  said  C  D. 
That  the  said  A  B  did  then  and  there  take  from  the  person 
and  against  the  will  of  said  C  D,  the  money  aforesaid, 
unlawfully,  wilfully,  violently  and  forcibly,  and  did  then 
and  there,  wilfully,  feloniously,  unlawfully  and  forcibly 
steal,  take  and  carry  away  all  of  the  said  money. ^" 

ANOTHER    FORM. 

Wilfully,  unlawfully  and  feloniously  did  take  from  the 
person  and  possession  of  one  C  D,  one  watch  of  the  per- 
sonal property  of  said  C  D,  of  the  value  of  twenty-five 
dollars,  lawful  money  of  the  United  States,  which  said 
taking  of  said  watch  aforesaid,  was  then  and  there  without 
the  consent  and'  against  the  will  of  said  C  D,  and  was  then 
and  there  accomplished  by  means  of  force  used  upon  and 
against  the  said  C  D,  by  said  A  B,  and  by  then  and  there 
putting  the  said  C  D  in  fear. 

39  People  V.  Nelson,    56    Cal.    77. 


CHAPTER  XLV. 


SBDUCXION. 

[Penal   Code,    sees.   266-268.] 


DEFINED. 


It  is  the  having  sexual  intercourse  with  an  unmar- 
ried female  of  previous  chaste  character  under  a 
promise  of  marriage,^  or  the  inveigling  or  enticing  of  an 
unmarried  female  of  previous  chaste  character  under 
eighteen  years  of  age,  into  a  house  of  ill  fame,  or  elsewhere 
for  purposes  of  prostitution  or  procuring  her  to  have  sex- 
ual intercourse  by  means  of  fraud. ^  It  is  necessary  to  show 
that  the  person  seduced  was  an  unmarried  female  of  pre- 
vious chaste  character,  and  that  she  consented  to  the  sexual 
act  upon  sole  consideration  of  a  promise  to  marry.  All 
these  elements  are  necessary  to  constitute  the  oflFense.'  The 
exact  date  of  the  crime  is  not  material* 

PROMISE  OF  MARRIAGE. 

The  purpose  of  the  law  is  to  protect  female  chastity. 
The  promise  of  marriage  need  not  be  such  a  legal  promise 
as  would  support  an  action  for  its  breach,  except  where  the 
woman  knew  the  defendant  was  unable  to  perform."  The 
gist  of  the  offense  is  the  accomplishment  of  the  sexual  act 
by  means  of  the  promise.®  But  it  is  not  essential  that  the 
express  consent  rested  upon  such  consideration.     And  the 

1  Penal  Code  268. 

2  Penal  Code  266. 

8  People  V.  Krusick,  93  Cal.  77;  People  v.  Hough.  120  Cal. 

540. 
*  People  V.  Goodwin,    132    Cal.    368. 
6  People  V.  Kehoe,   123   Cal.   224. 
e  People  v.  Krusick,  93  Cal.  74. 


SEDUCTION.  26^ 

Statement  of  the  prosecutrix  in  terms  that  she  did  not  con- 
sent to  the  act  is  not  controlling  on  the  jury  where  the  evi- 
dence shows  she  did  reluctantly  yieldJ  And  the  informa- 
tion need  not  allege  a  promise  made  to  the  prosecutrix. 
It  is  sufficient  if  the  language  of  the  statute  be  followed 
and  it  be  alleged  that  the  defendant  promised  to  marry  her, 
although  a  direct  allegation  is  better  pleading.^  It  is  no 
defense  that  he  intended  at  the  time  to  keep  the  promise,  if 
hci  afterward  broke  it."  The  female  has  the  right  to  expect 
a  fulfillment  of  the  promise,  even  when  made  by  an  infant. 
The  crime  may  be  committed  by  an  infant  upon  an  infant 
a  both  parties  have  reached  the  age  of  puberty.^"  And  the 
willingness  of  the  defendant  to  marry  the  prosecutrix  does 
not  condone  the  offense.  The  woman  has  the  power  and 
right  to  decline  the  marriage.  She;  is  the  sole  arbiter  upon 
that  question. ^^  A  marriage  to  be  a  defense  must  be  upon 
a  previous  consent  followed  by  a  mutual  assumption  of 
marital  rights,  duties  and  obligations,  evidenced  by  cohabi- 
tation as  husband  and  wife.  But  mere  copulation  does  not 
mean  cohabitation.^^ 

CHASTE    CHARACTER. 

The  previous  chaste  character  of  the  female  is  not  pre- 
sumed against  the  innocence  of  the  defendant.^^  It  is  one 
of  the  elements  of  the  offense  and  must  be  proven.^*  The 
meaning  of  the  term  chaste  character  is  simply  that  the 
female  is  virgo  intacta}^  And  the  inquiry  is  limited  to 
character  prior  to  the  alleged  seduction. ^^ 

EVIDENCE. 

The  previous  chaste  character  is  not  established  by  the 

-  People  V.  Wallace,   109  Cal.  611. 

8  People  V.  Higuera,   122    Cal.   466. 

.    9  People  V.  Samonset,  97  Cal.  448. 

10  People  V.  Kehoe,    123    Cal.    224. 

11  People  V.  Hough,    120    Cal.    538. 

12  People  V.  Lehmann,   104   Cal.   634. 

13  People  V.  Roderigas,   49   Cal.   9. 

14  People  V.  Wallace,   109   Cal.   611;    People  v.   Krusick,  93 
Cal.    74. 

15  People  V.  Kehoe,    123  Cal.   224. 

16  People  V.  Wade,    118    Cal.    672;     People    v.    Kehoe,    128. 
Cal.   224. 


270  CRIMINAL  LAW  AND  PROCEDURE. 

fact  that  the  prosecutrix  associated  with  reputable  people." 
Neither  is  the  want  of  it  established  by  the  fact  that  the 
female  permitted  familiarities  from  men  or  was  guilty  of 
other  indecencies.^^  But  an  acquaintance  of  the  prosecu- 
trix, and  of  whose  family  she  has  been  a  member,  may  say 
whether  she  was  chaste  prior  to  the  alleged  seduction.^' 
And  a  person  who  lived  in  the  house  where  the  prosecutrix 
was  employed  for  two  years,  may  testify  to  her  good  char- 
acter and  reputation.'^'*  The  testimony  of  the  prosecutrix 
alone  with  the  conceded  fact  of  the  intercourse  and  evi- 
dence establishing  previous  chaste  character  is  sufficient  to 
infer  promise  to  marry.^^  And  ^  conviction  may  be  had  on 
the  uncorroborated  testimony  of  the  prosecutrix.^*  The 
want  of  chastity  of  sisters  of  the  prosecutrix  cannot  be 
shown  on  cross-examination,  when  not  brought  out  in 
chief."     Evidence  of  pregnancy  is  admissible.** 

ENTICING    FEMALE   TO    HOUSE    OF    ILL    FAME. 

Closely  connected  with  the  crime  of  seduction  is  the 
offense  of  enticing  a  female  of  previous  chaste  character, 
under  eighteen,  into  a  house  of  ill  fame  for  the  purposes  of 
prostitution.*'  Seduction  is  not  punishable  under  this  law. 
It  refers  to  the  crime  of  procuring  a  female  to  have  illicit 
carnal  connection  with  another.  But,,  as  in  cases  of  seduc- 
tion, previous  chaste  character  must  be  shown.*®  And  this 
is  a  question  for  the  jury.*^ 

PUTTING    WIFE    IN    HOUSE    OF    ILL    FAME. 
[Stat.  1891,  p.  285.] 

A  house  of  ill  fame  is  a  house  used  for  the  purposes  of 

17  People  V.     Krusick,   93   Cal.   74. 

18  People  V.  Kehoe,    123   Cal.    224. 
18  People  V.  Wade,    118   Cal.    672. 

20  People  V.  Samonset.   97   Cal.    448. 

21  People  V.  Hough,   120  Cal.   538. 

22  People  V.  Goodwin,   132   Cal.   368;    People   v.   Wade,   118 
Cal.   672. 

28  People  V.  Higuera,   122   Cal,   466. 

9*  People  V.  Rangod,    112    Cal.    669;    People    v.    Goodwin, 
132   Cal.   371. 

25  Penal  Code  266. 

26  People  V.  Roderigas,    49    Cal.    9. 

27  People  V.  Elliott.    119   Cal.    593. 


SEDUCTION. 


271 


prostitution,  and  it  is  immaterial  whether  inhabited  by 
more  than  one  woman. -^  The  gist  of  the  offense  is  that 
the  wife  was  in  a  house  of  ill  fame  with  the  consent  of  her 
husband.  The  consent  may  be  shown  by  a  failure  to  object 
after  knowledge.^* 

PENALTY. 

Seduction,  imprisonment  in  state  prison  not  more  than 
five  years,  or  fine  not  more  than  five  thousand  dollars,  or 
both.  Enticing  unmarried  female  into  house  of  ill  fame, 
imprisonment  in  state  prison  not  exceeding  five  years,  or 
county  jail  not  exceeding  one  year,  or  by  fine  not  exceed- 
ing one  thousand  dollars,  or  both.  Placing  wife  in  house 
of  prostitution,  imprisonment  in  state  prison  from  three  to 
ten  years. 

FORM SEDUCTION     UNDER    PROMISE    OF    MARRIAGE. 

Did  wilfully,  unlawfully,  feloniously  and  under  the  prom- 
ise of  marriage,  seduce  and  have  carnal  sexual  intercourse 
with  one  C  D,  an  unmarried  female  of  previous  chaste 
character. 

FORM ENTICING   FEMALE   INTO    HOUSE  OF   ILL   FAME. 

Wilfully,  unlawfully  and  feloniously  did  inviegle  and 
entice  one  C  D,  an  unmarried  female  of  previous  chaste 

character  and  under  the  age  of  eighteen  years,  to  wit, 

years,  into  a  house  of  ill  fame  and  of  assignation  [or  else- 
where, as  the  case  may  be]  for  the  purpose  of  prostitution 
[or  to  have  illicit  carnal  intercourse  with  one  E  F.] 

28  People  V.  Slater,    119    Cal.    620. 

29  People  V.  Bosquet.  116  Cal.  75. 


CHAPTER  XLVI. 


SEIvI^INO  LAND  TWICB. 

[Penal  Code,  sec.  533.] 


DEFINED. 


Is  the  wilfull  selling,  bartering  or  disposing  of  land,  for 
a  valuable  consideration,  or  the  execution  of  an  agreement 
therefor,  after  having  previously  sold,  bartered  or  disposed 
of  the  same,  or  having  executed  an  agreement  therefor, 
with  intent  to  defraud.  To  constitute  the  oflfense  it  must 
appear:  (i)  that  there  were  two  sales;  (2)  that)  the  second 
sale  was  for  a  valuable  consideration,  and  (3)  that  it  was 
made  with  intent  to  defraud  either  the  first  or  second  pur- 
chaser.^ Giving  a  mortgage  on  the  land  by  a  party  who 
has  already  conveyed  the  title  is  not  disposing  of  the  land 
within  the  meaning  of  this  statute.* 

PENALTY. 

Imprisonment  in  state  prison  not  less  than  one  nor  more 
than  ten  years. 

FORM. 

That  on  the  —  day  of -,  190 — ,  to  one  C  D  did  sell, 

barter  and  dispose  of  the  following  described  real  estate, 
to  wit,  [here  describe  land]  and  afterwards,  to  wit,  on  the 
—  day  of  ,  190 — ,  the  said  A  B,  for  a  valuable  con- 
sideration, and  with  intent'  to  defraud  one  E  F,  wilfully, 
knowingly  and  feloniously  did  sell,  barter  and  dispose  of 
said  land  to  said  E  F.^ 

1  People  V.  Garnett,   35   Cal.    470. 

2  People  V.  Cox,   45   Cal.   342. 

3  People  V.  Garnett,  35  Cal.  470. 


CHAPTER  XLVII. 


SEF»UI^CHER,  VIOLAXION  OF. 

[Penal  Code,  sec.   290.] 


DEFINITION. 

It  is  the  mutilation,  disinterment  or  removal  from  the 
place  of  sepulture  of  the  dead  body  of  a  human  being  other 
than  that  of  a  relative  or  friend,  removed  for  reinterment 
without  authority  of  law.^ 

FORM DISI NTERM  ENT. 

Without  authority  of  lav\^  disinterred  and  removed  from 
its  place  of  sepulture  at  C  D  cemetery,  situate  in  said 
county,  the  dead  body  of  one  E  F,  a  human  being,  the  said 
dead  body  not  being  the  dead  body  of  a  friend  or  relative 
of  the  said  A  B  removed  for  reinterment.^ 

DEFACING  MONUMENT,  see  SEPULCHER. 

[Penal   Code,  sec.  296.] 

FORM — DEFACING     MONUMENT. 

Wilfully  and  maliciously  did  deface,  break  and  destroy 
[or  remove]  a  certain  tomb  [or  monument  or  gravestone] 
standing  in  the  C  D  cemetery  in  said  county  which  said 
tomb  [or  monument  or  gravestone]  had  been  erected  over 
the  grave  of  one  E  F,  deceased,  and  to  the  memorv  of  said 
E  F. 

FORM — FOR    INJURING    OR    DESTROYING    SHRUBBERY. 

Wilfully  and  maliciously  did  deface,  break,  destroy  [or 
remove]  a  certain  memento  [or  memorial,  ornamental  plant, 

1  People  V.  Dalton,    58    Cal.    226. 

2  People  V.  Dalton,    58   Cal.    226. 

CRIMES--18 


274  CRIMINAL  LAW  AND  PROCEDURE. 

tree  or  shrub]  being  in  and  appertaining  to  a  plac;^  of  burial 
of  human  beings,  to  wit,  in  C  D  cemetery  in  said  counry. 

^  FORM — FOR    DEFACING    FENCE,    ETC. 

"Wilfully  and  maliciously  did  mark,  deface,  injure, 
destroy  [or  remove]  a  certain  fence  [or  post,  rail  or  wall] 
of  the  C  D  cemetery  and  graveyard,  in  said  county. 

SODOMY,  see  CRIME  AGAINST  NATURE. 

STEAL,  see   LARCENY,   ROBBERY  and   BURGLARY. 

SUBORDINATION  OF  PERJURY,  see  PERJURY. 

SUMMARY   PROCEEDINGS,  see    MISDEMEANOR    IN   OFFICE. 

THREATENING  LETTERS,  see  EXTORTION. 

THREATS,  see  EXTORTION. 

TIMBER,  see  TRESPASSING. 

TOMBS,  see  SEPULCHER,  VIOLATION  OF 


CHAPTER  XLVIII. 


THROWINQ  VITRIOIv. 

[Penal  Code,   sec.   244.] 


DEFINITION. 

It  is  the  crime  of  wilfully  and  maliciously  placing  or 
throwing,  or  causing  to  be  placed  or  thrown,  upon  the  per- 
son of  another,  any  caustic  chemical,  with  intent  to  injure 
the  flesh  or  disfigure  the  body  of  such  person.  An  assault 
is  a  necessary  element  of  and  included  in  the  offense.^ 

PENALTY. 

Imprisonment  in  state  prison  from  one  to  fourteen  years. 

FORM. 

Wilfully,  maliciously,  unlawfully  and  feloniously  did 
place,  put,  pour  and  throw  upon  the  head,  face  and  person 
of  one  C  D,  a  certain  caustic  chemical,  corrosive  acid  and 
burning  substance  commonly  known  and  called  vitriol  [or 
other  substance,  describe  by  name]  with  intent  then  and 
there  to  injure  the  flesh  and  disfigure  the  body  of  the  said 
C  D.2 

Note. — For  form  of  indictment  against  one  who  is 
charged  with  aiding  and  abetting  this  crime,  and  is  not 
charged  in  general  terms  as  principal,  but  as  an  accessory, 
see  People  v.  Rozelle,  78  Cal.  84.  This  procedure,  how- 
over,  is  unnecessary,  it  being  sufficient  to  charge  the  one 
aiding  and  abetting  as  a  principal. 

1  People  V.  Stanton,  106   Cal.   139. 

2  People  V.  Rozelle,    78    Cal.    86. 


CHAPTER  XLIX. 


XRAIN  ^W^RBCKINO. 

f  Penal  Code,  sec.  218.} 


DEFINED. 


It  is  the  unlawful  throwing  out  of  a  switch,  removing  a 
rail,  or  placing  any  obstruction  on  a  railroad,  with  the 
intention  to  derail  a  train;  or  the  unlawful  boarding  of  a 
passenger  train  with  the  intention  of^robbing  the  same;  or 
the  unlawful  placing  of  explosive  material,  or  other  obstruc- 
tion on  the  track  of  a  railroad  with  intention  of  blowing. 
up  or  derailing  a  train;  or  unlawfully  setting  fire  to  any 
railroad  bridge  or  trestle  over  which  any  train  must  pass, 
with  intention  of  wrecking  said  train.  ,  It  was  not  intended 
to  punish  train  robbery  as  such  but  to  prevent  train  wreck- 
ing. Robbery  is  punished  only  as  an  incident  to  the  train 
wrecking.  The  phrase  "  robbing  a  train  "  means  the  tak- 
ing from  persons  having  charge  of  the  train,  by  violence 
and  intimidation,  the  control  and  management  thereof,  with 
intent  to  take  from  it  or  from  some  person  thereon  some- 
thing of  value. ^  Train  wrecking  must  be  such  a  destruc- 
tion of  a  train  as  will  endanger  human  life ;  and  the  crime 
is  not  committed  by  one  who  boards  an  express  car  and, 
with  force  and  violence,  robs  a  messenger  of  money  in  his 
custody.^  An  information  charging  the  defendant  with 
throwing  out  a  switch  with  intent  to  derail  a  passenger 
train  and  with  boarding  a  passenger  train  with  intent  to  rob 
the  same,  does  not  charge  two  offenses.^ 

1  People  V.  Lovren,    119    Cal.    88;    People    v,    Thompson, 
115   Cal.   160. 

2  People  V.  Thompson,  115  Cal.  160. 

a  People  V.  Thompson.    Ill    Cal.   242, 


TRAIN  WRECKING.  277 


PENALTY. 


Punishable  with  death  or  imprisonment  in  state  prison 
for  life,  at  the  option  of  the  jury  trying  the  case. 

FORM — TRAIN    WRECKING. 

Wilfully,   unlawfully   and    feloniously   did   throw  out  a 

switch  at  ,  a  station  on  the  railroad  known  as  the 

railroad,  with  intent  then  and  there  to  derail  a  pas- 
senger train ;  and  then  and  there  wilfully,  unlawfully  and 
feloniously  did  board  a  passenger  train  on  said  railroad,  at 
said  station,  with  intent  then  and  there  to  rob  said  passen- 
ger train.* 

4  People  V.  Thompson,   111   Cal.   242. 


CHAPTER  L. 

TRESPASSING. 

[Penal  Code,   sec.  602.] 


DEFINED. 
Is  the  cutting  down,  destroying  or  injuring  wood  or 
timber  on  the  land  of  another;  or  maliciously  injuring  or 
severing  from  the  freehold  anything  attached  thereto;  or 
digging,  taking  or  carrying  away  any  earth,  soil  or  stone 
irom  a  lot  or  street  in  an  incorporated  town  or  city ;  or 
putting  up  printing  or  painting  on  the  property  of  another, 
any  advertisement,  picture  or  sign;  or  entering  upon  lands 
whereon  oysters  or  other  shell  fish  are  planted  or  growing; 
or  removing  or  destroying  any  stakes,  marks,  fences  or 
signs  intended  to  designate  the  boundaries  of  such  land.^ 
It  is  larceny  to  convert  real  estate  into  personal  property 
and  steal  the  same.^ 

PENALTY. 

Imprisonment  in  county  jail  not  exceeding  six  months,  or 
fine  not  exceeding  five  hundred  dollars,  or  both. 

FORM INJURING   TIMBER. 

Then  and  there  wilfully  and  unlawfully  did  cut  down 
and  injure  certain  trees,  wood  and  timber  standing  and 
growing  upon  the  lands  of  one  A  B. 

FORM SEVERING  FROM  FREEHOLD. 

Wilfully,  unlawfully  and  maliciously  did  sever  from 
[describe  land]  the  same  being  then  and  there  the  freehold 
of  one  A  B,  [describe  what  was  severed]  the  same  being 
then  and  there  the  produce  of  the  freehold  aforesaid,  and 
then  and  there  attached  thereto. 
UNLAWFUL    ASSEMBLY,  see  DISTURBANCE  OF  THE  PEACE. 

1  Penal  Code  602. 

2  Statutes,  1871,  1872,  pp.  282  and  435. 


CHAPTER  LI. 


VAORANCY. 

[Penal   Code,   sec.   €47.] 


DEFINED. 

Every  person  (except  a  California  Indian)  without  visi- 
ble means  of  living  who  has  the  physical  ability  to  work, 
and  who  does  not  seek  employment,  nor  labor  when  employ- 
ment is  offered  him ;  or,  every  healthy  beggar  who  solicits 
alms  as  a  business ;  or,  every  person  who  roams  about 
from  place  to  place  without  any  lawful  business ;  or,  every 
person  known  to  be  a  pickpocket,  thief,  burglar  or  confi- 
dence operator,  either  by  his  own  confession,  or  by  his  hav- 
ing been  convicted  of  either  of  said  offenses,  and  having 
no  visible  or  lawful  means'  of  support,  when  found  loitering 
around  any  steamboat  landing,  railroad  depot,  banking 
institution,  broker's  office,  place  of  public  amusement,  auc- 
tion room,  store,  shop,  or  crowded  thoroughfare,  car  or 
omnibus,  or  at  any  public  gathering  or  assembly ;  or,  every 
idle  or  dissolute  person,  or  associate  of  known  thieves,  who 
wanders  about  the  streets  at  late  or  unusual  hours  of  the 
night ;  or,  every  person  who  lodges  in  any  barn,  shed,  shop, 
outhouse,  vessel,  or  place  other  than  such  as  is  kept  for 
lodging  purposes,  without  the  permission  of  the  owner  or 
party  entitled  to  the  possession  thereof;  or,  every  lewd 
or  dissolute  person  who  lives  in  and  about  houses  of  ill 
fame ;  or,  every  person  who  acts  as  a  runner  or  capper  for 
attorneys  in  and  about  police  courts  or  city  prisons,  in  incor- 
porated cities,  or  cities  and  counties ;  or,  every  common 
prostitute  and  common  drunkard  is  a  vagrant.  The 
statute  makes  i;    an  offense  for  a  healthy  beggar  to  solicit 


280  CRIMINAL  LAW  AND  PBOCEDURE. 

alms  as  a  business.  For  one  to  ask  assistance  on  one 
occasion  does  not  make  him  a  vagrant.^ 

PENALTY. 

Imprisonment  in  county  jail  not  exceeding  six  months. 

FORM — REFUSING   TO    LABOR. 

Wilfully  and  unlawfully  did  fail,  neglect  and  refuse  to 
seek  employment,  and  did  not  labor  when  employment  was 
offered  to  him,  and  was  then  and  there  without  visible 
means  of  living,  having  at  all  times  aforesaid  the  physical 
ability  to  work,  he,  the  said  C  D,  not  being  a  California 
Indian. 

FORM HEALTHY    BEGGAR. 

Was  then  and  there  a  healthy  beggar,  and  did  then  and 
there  wilfully  and  unlawfully  solicit  alms  as  a  business. 

FORM — ROAMING  ABOUT. 

Wilfully  and  unlawfully  did  roam  about  from  place  to 
place  without  any  lawful  business. 

FORM KNOWN   CRIMINAL. 

Was  then  and  there  a  person  known  to  be  a  pickpocket, 
thief,  burglar  and  confidence  operator  by  his  own  confes- 
sion, and  by  having  been  convicted  of ,  and  having 

then  and  there  no  visible  or  lawful  means  of  support,  and 
was  then  and  there  wilfully  and  unlawfully  loitering  about 
a  certain  steamboat  landing  [or  railroad  depot,  banking 
institution,  broker's  office,  place  of  public  amusement,  auc- 
tion room,  store,  shop,  or  crowded  thoroughfare,  car  or 
omnibus  or  any  public  gathering  or  assembly  as  the  case 
may  be.] 

FORM ASSOCIATE  OF  KNOWN  THIEVES. 

Was  then  and  there  an  idle  and  dissolute  person,  an 
associate  of  known  thieves,  and  did  then  and  there  wilfully 

and  unlawfully  wander  about  the  streets  of at  late 

and  unusual  hours  of  the  night. 

1  People  V.  Denby,   108   Cal.    57. 


VAGRANCY.  281 

FORM LODGERS    IN    OUTHOUSES. 

Did  then  and  there  wilfully  and  unlawfully  lodge  in  a 
certain  barn,  shed,  shop,  outhouse  and  place  other  than' such 
as  is  kept  for  lodging  purposes,  without  the  permission  of 
A  B,  the  owner  and  party  entitled  to  the  possession  thereof. 

FORM LIVING    IN    HOUSE   OF   ILL   FAME.    • 

Was  then  and  there  a  lewd  and  dissolute  person  living  in 
and  about  houses  of  ill  fame. 

FORM — C.\PPERS    FOR   ATTORNEYS. 

Wilfully  and  unlawfully  did  act  as  a  runner  and  capper 
for  attorneys  in  and  about  the  police  court  and  the  city 
prison  of  the  incorporated  city  of , 

FORM — PROSTITUTES  AND  DRUNKARDS. 

Was  then  and  there  a  common  prostitute  [or  a  common 
drunkard.] 

VOLUNTARY    MANSLAUGHTER,    see    HOMICIDE. 

WATER,  see  FRAUDULENTLY  TAKING   FROM   MAIN. 

WEAPON,   DEADLY,   see   ASSAULTS,   see   DISTURBANCE   OF 

PEACE. 

WOMEN,  see  SEDUCTION,  ABORTION,  RAPE. 


CHAPTER  LII. 


MODKS  OF  PROSECUTING  CRIME. 


In  this  state  there  are  two  modes  for  the  prosecution  of 
crime :  ( i )  by  information,  after  examination  and .  com- 
mitment by  a  magistrate,  and  (2)  by  indictment,  with  or 
without  such  examination  and  commitment.^  Prosecution 
by  information  takes  from  the  accused  no  immunity  nor 
protection  to  which  he  is  entitled  imder  the  law.^  The 
two  modes  of  prosecution,  by  indictment  and  information, 
are  concurrent.*^  A  preHminary  examination  and  commit- 
ment by  a  magistrate  is  required  before  an  information  can 
be  filed,  and  an  examination  by  a  grand  jury  before  an  in- 
dictment, not  so  much  to  protect  the  liberties  of  the  citizen 
as  to  protect  him  from  being  prosecuted  on  slight  evidence 
or  mere  suspicion,  or  at  the  instigation  of  malice.*  These 
two  methods  of  procedure  will  be  considered  in  their  order, 
and  the  procedure  by  information  will  be  first  discussed. 

BY  INFORMATION. 

PRELIMINARY    EXAM  1  NATION. 

A  preliminary  examination  may  be  compelled  by  man- 
damus when  a  person  has  been  regularly  charged  with  an 
offense,  arrested  and  brought  before  a  magistrate.^  While 
two  or  more  defendants  have  the  right  to  separate  trials^ 
when  jointly  indicted,  they  have  no  such  right  to  separate 

1  Article  1,  Section  8,  Constitution  of  California. 

2  Kalloch  V.  Superior  Court,  56  Cal.  299;  Hurtado  v.  Cal- 
ifornia,  110   U.   S.   516. 

3  People  V.  Ebanks,  12o  Cal.  626. 
*  People  V.  Beach,    122    Cal.    37. 

»  People  V.  Barnes,    66    Cal.    594;    Ex    parte    Dimmlg,    74 
Cal.   164. 


PROSECUTING  BY  INFORMATION. 

preliminary  examinations."  This  is  within  the  discretion 
bi  the  district  attorney.^  A  waiver  of  examination  should 
not  be  allowed  in  felony  cases. ^  Proceedings  by  informa- 
tion do  not  authorize  a  waiver  of  examination,"  but  a 
waiver  of  examination  does  not  bar  a  subsequent  examina- 
tion.^" The  making  of  a  written  confession  by  the  defend- 
ant before  the  magistrate  is  a  sufficient  examination  for  the 
purpose  of  holding  him.^^  It  is  the  duty  of  the  court  to 
appoint  a  shorthand  reporter  to  take  the  testimony  in 
homicide  cases,  and  upon  the  demand  of  the  prosecuting 
attorney,  or  the  defendant  or  his  council,  in  all  other 
cases. ^^  The  law  only  requires  that  the  person  appointed 
be  competent  to  do  the  work,  and  an  objection  to  the  com- 
petency of  the  reporter  is  waived  by  not  being  made  at  the 
time  of  the  examination.^^  A  complaint,  made  on  informa- 
tion and  belief  before  a  magistrate,  is  of  little  value,^*  and 
will  not  support  a  warrant  of  arrest.^"'*  The  complaint  may 
be  sworn  to  before  another  court  or  magistrate  than  the  one 
before  whom  the  examination  is  held.^*^  The  clerk  of  a 
police  court  may  administer  the  oath.^^  And  where  the 
affidavit  is  taken  before  a  deputy  clerk  he  need  not  sign  his 
principal's  name  to  the  jurat.^*  The  complaint  must  state 
facts  svifficient  to  constitute  a  public  offense.^®  Where  the 
evidence  shows  that  a  crime  has  been  committed,  and  there 
is  probable  ground  for  belief  that  the  defendant  committed 

G  People  V.   Burns,   121   Cal.   529. 

-  People  V.  Piyler,    121    Cal.    160. 

8  Ex  parte  Walsh,  39  Cal.   705. 

"  Kalloch  V.  Superior    Court,    56    Cal.    234. 

10  Ex  parte  Walsh,   39   Cal.   705. 

11  People  V.  Cokahnour,   120  Cal.  253. 
1-'  Penal  Code  869. 

13  People  V.  Mclntyre,    127    Cal.    423. 

i-t  People  V.  Smith,   1   Cal.   9. 

1"  Ex  parte  Dimmig,  74  Cal.  164;   Ex  parte  Spears,  88  Cal. 

642;    People  v.   Staples,  91  Cal.  25. 
16  People  V.  Le  Roy,   65  Cal.   613. 
1-  People  V.  Burns,    121   Cal.   529;    In  re   Mitchell,   120   Cal. 

384;  People  v.  Vasalo,  120  Cal.  168. 
18  People  V.  Wheatley,   88  Cal.   114. 
in  People  V.  Howard,    111    Cal.    655;    People    v.    Beach,    122 

Cal.  38. 


284  CRIMINAL  LAW  AND  PROCEDURE. 

the  crime,  it  is  sufficient  cause  to  hold  him.^*'  The  defend- 
ant complained  of  by  fictitious  name  may  be  held  to  answer 
and  informed  against  under  his  true  name.^^  The  defend- 
ant has  the  right  to  counsel  at  all  stages  of  the  proceedings, 
and  a  lawyer  accused  of  crime  is  entitled  to  counsel  as  well 
as  a  layman.^^  The  court  must  grant  the  defendant  a 
reasonable  time  to  procure  counsel.^-* 

ORDER  OF   COMMITMENT. 

The  order  of  commitment  must  be  in  writing,^^  but  it 
may  be  entered  in  the  docket  or  endorsed  om  the  complaint 
or  on  the  depositions  taken  at  the  examination.^*  An  oral 
order  reduced  to  writing  by  the  reporter  and  not  signed  by 
the  justice  is  insufficient.^^  The  order  is  sufficient  if  in  the 
language  of  the  statute.-**  If  the  magistrate  is  not  com- 
pelled to  rely  on  his  recollection  for  the  facts,  but  has  any 
order  or  judgment  or  entry  made  at  the  conclusion  of  the 
examination  to  which  reference  can  be  had  to  guide  him,  an 
amended  commitment  may  be  issued. ^^  And  where  the 
information  is  set  aside  for  a  failure  of  the  magistrate  to 
endorse  the  commitment,  it  may  be  sent  back  to  the  magis- 
trate who  may  commit  without  another  examination,^^  but 
where  the  information  is  set  aside  for  an  illegal  commit- 
ment, no  other  may  be  filed  without  an  examination.*'    Any 

20  Ex  parte  Becker,  86  Cal.  492;  Ex  parte  Walpole,  85  Cal. 
362. 

21  People  V.  Wheeler,    73    Cal.    252. 

22  People  V.  Napthaly,    105   Cal.    641. 
22a  People   V.   Flannelly,   128   Cal.   83. 

23  People  V.  Wilson,  93  Cal.  379;  People  v.  Wallace,  94 
Cal.  499;   Ex  parte  Branigan,  19  Cal.  133. 

2*  People  V.  Wilson,  93  Cal.  377;  People  v.  Tarbox,  116 
Cal.  61;  People  v.  Wallace,  94  Cal.  499;  People  v.  Hard- 
isson,  61  Cal.  378;  People  v.  Dolan,  96  Cal.  317;  People 
V.  Sehorn,  116  Cal.  507;  People  v.  Napthaly,  105  Cal. 
People  V.  Young,  64  Cal.  312;  People  v.  Smith,  59  Cal. 
365;    People  v.  Hope,  62  Cal.  293. 

25  People  V.  Wilson,    93    Cal.    377. 

28  People  V.  McCurdy,   68   Cal.    576. 

2T  Ex  parte  Branigan,  19  Cal.  133;  People  v.  Keil,  85  Cal. 
310;  Ex  parte  Estrado,  88  Cal.  318. 

28  People  V.  Lane,  101  Cal.  513;  People  v.  Thompson,  84 
Cal.   598. 

20  People  V.  Napthaly,  105  Cal.  644;  Ex  parte  Baker,  88 
Cal.   84. 


PROSECUTING  BY  IMFORMATION.  285 

defect  in  the  commitment  is  not  fatal,  if  the  order  for  the 
commitment,  otherwise  full  and  complete,  merely  omits  the 
name  of  the  person  murdered.^"  And  a  commitment  regu- 
lar on  its  face  with  an  information  based  thereon  gives  the 
court  jurisdiction.^^  The  order  of  commitment  is  opera- 
tive when  made  and  signed,^^  and  a  warrant  of  commitment 
will  be  presumed  to  have  been  based  on  a  proper  order 
therefor. ^^  The  information  need  not  contain  any  allega- 
tion with  reference  to  the  examination  before  the  magis- 
trate,^* and  the  failure  of  the  magistrate  to  return  the 
papers  after  the  examination,^^  or  of  the  reporter  to  file  a 
transcription  of  his  notes,  does  not  prevent  the  filing  of  the 
information.^^  Where  the  information  is  filed  the  same 
day  as  the  order  committing  the  defendant,  the  court  will 
presume  the  information  was  filed  subsequent  to  the  order 
of  the  commitment.^^  Where  the  defendant  is  acquitted 
for  a  variance  the  court  may  order  a  new  information  when 
the  necessity  of  it  becomes  apparent.^*  A  new  information 
cannot  be  filed,  however,  on  an  order  sustaining  a  demur- 
rer with  leave  to  file  a  new  one.  Leave  to  file  is  not  the 
same  as  an  order  to  file.^*  Where  the  jury  is  discharged 
because  the  facts  charged  do  not  constitute  an  offense,  a 
new  information  can  be  filed  without  an  order  of  court.*** 

THE  COMMITMENT. 

The  term  "  legally  committed "  means  only  that  the 
accused  has  been  committed  by  a  magistrate  who  had  juris- 
diction to  hold  and  examine  him,  who  actually  heard  evi- 
dence and  determined  the  cause,  and  held  the  defendant  to 
answer.*^     Any    defect    in    the   examination,    not   affecting 

30  Ex  parte  Walpole,   85  Cal.  362. 

31  People  V.  Bawden,  90  Cal.  195. 

32  People  V.  Tarbox,  115  Cal.   57. 

33  People  V.  McCurdy,  68  Cal.  576. 

34  People  V.  Shurbrick,  57  Cal.  565. 

35  People  V.  Wickham,    113    Cal.    283. 
3G  People  V.  Rilley,    65    Cal.    107. 

3T  People  V.  McCurdy,  68  Cal.  576. 

38  Ex  parte  Nicholas,   91  Cal.   640. 

39  Ex   parte  Williams,   116   Cal.   512. 

40  People  V.  Ammerman,    118   Cal.    23. 

41  People  V.  Sehorn,  116  Cal.  507;  People  v.  Beach,  122 
Cal.  37;  Ex  parte  Baker,  88  Cal.  84;  People  v.  Moore,  68 
Cal.  500;    People  v.  Howard,  111  Cal.  655. 


286  CRIMINAL  LAW  AND  PROCEDUKE. 

the  substantial  rights  of  the  accused,  will  not  be  grounds 
for  avoiding  a  verdict  of  conviction.*^  The  irregularity 
must  be  one  of  substance.*'  Thus  the  failure  to  endorse 
"  filed  "  on  the  complaint  does  not  cause  the  justice  to  lose 
jurisdiction,**  nor  commencing  the  examination  beyond  six 
days.*"  The  legality  of  the  commitment  is  presumed.** 
An  immaterial  misnomer  does  not  render  the  commitment 
illegal.*^  The  justice  of  the  peace  has  jurisdiction  only 
in  his  own  court,  and  cannot  try  or  hold  an  examination  in 
another  forum.**  Magistrates  in  conducting  examinations 
are  not  distinguished  as  to  power  or  rank.*'  And  they  have 
jurisdiction  in  examining  persons  charged  with  offenses 
within  their  own  county,  notwithstanding  the  warrant  was 
issued  by  another  magistrate.""  A  justice  issuing  a  war- 
rant may  call  in  another  to  conduct  the  examination,'^  and 
he  need  not  set  forth  his  reasons  therefor."^  A  superior 
judge,  acting  as  a  magistrate,  has  only  the  same  power  as 
a  justice  of  the  peace."  The  preliminary  examination  is 
not  affected  by  a  justice  holding  over  on  a  failure  to  elect 
his  successor."*  Disqualification  of  a  magistrate  must  be 
shown  by  affidavits."  An  order  admitting  to  bail  is  not 
essential  to  the  commitment,"®  and  the  complaint  alone  is 
a  sufficient  deposition  to  sustain  the  warrant  of  arrest.*^ 

42  People  V.  Van   Horn,   119   Cal.   323. 

43  People  V.  Sehorn,   116   Cal.   503. 
**  People  V.  Hiltel.    131    Cal.    577. 

45  People  V.  Van   Horn,   119   Cal.   323. 

46  People  V.  Beach,    122    Cal.    37. 

47  People  V.  George,   121   Cal.   492. 

48  Ex  parte  Giambonini,  117  Cal.  573.  This  overruled 
the  case  of  Ex  parte  Reilly,  85  Cal.  632,  where  it  was 
held  that  the  action  of  a  justice  of  the  peace  is  valid 
when  within  his  jurisdiction,  although  done  by  him 
as  a  police  judge. 

4»  People   v.    Crespi,    115   Cal.    50;    People    v.    Cohen,    118 

Cal.  78. 
80  People  v.  Branigan,    19    Cal.    133. 

51  People  V.  Sansome,  98  Cal.  235. 

52  People  v.  Sehorn,    116    Cal.    506. 

53  People  v.  Cohen,  118  Cal.  74. 

64  People  V.  Chaves,    122   Cal.    134. 

55  C.  C.  P.,  170;  Patterson  v.  Conlan,  123  Cal.  453;  In  re 
Jones,    103   Cal.    397;    McCauley  v.    Weller,    12   Cal.    524. 

56  People  V.  Thompson,   84   Cal.   598. 
B'  People  V.  Staples,    91    Cal.    23. 


PROSECUTING  BY  INFORMATION.  287 

Tlie  legality  of  a  commitment  can  be  raised  only  on  motion 
to  set  aside  the  information.'^*  It  is  waived  if  not  so  taken, 
and  cannot  be  afterwards  raised  by  demurrer,"*"  and  cannot 
be  used  as  a  ground  for  a  new  trial  or  on  motion  in  arrest  of 
judgment.*"  Where  the  testimony  of  the  witness  is  taken 
down  at  the  preliminary  examination  by  a  shorthand 
reporter,  the  reporter  must  certify  to  the  transcript  of  the 
testimony  that  it  is  a  'correct  statement  of  such  testimony, 
and  it  must  be  so  authenticated  that  an  inspection  of  it  will 
.^how  that  it  is  the  testimony  taken  at  the  preliminary 
examination  of  the  accused.  It  must  not  depend  in  any 
respect  on  the  memory  of  the  magistrate  or  the  reporter, 
and  no  oral  proof  can  be  allowed  at  the  trial  for  the  pur- 
pose of  showing  against  what  defendant,  or  upon  what 
-<:harge,  or  at  what  time,  the  testimony  was  taken.  A  cer- 
tificate that  the  testimony  is  a  true  copy  of  the  testimony 
instead  of  a  correct  statement  thereof  is  not  sufficient.'^ 

THE  INFORMATION. 

The  procedure  by  information  is  a  separate  mode  and 
is  not  affected  by  the  fact  that  the  grand  jury  was  in  ses- 
sion when  it  was  filed.**^  An  examination  and  commit- 
ment by  a  magistrate  is  absolutely  essential  before  the  filing 
of  the  information  f^  but  an  examination  and  commitment 
by  a  magistrate  is  not  a  prerequisite  to  an  indictment.** 
The  accused  must  be  informed  against  for  the  crime 
embraced  and  stated  in  the  complaint  and  commitment. 
The  district  attorney  is  not  authorized  to  go  outside  of  this 
and  cull  from  the  evidence  taken  at  the  preliminary  exam- 
ination any  offense  not  included  therein.*^     The  complaint 

58  Ex   parte   Moan,    65    Cal.   216;    People   v.   MeConnell,    82 
Cal.  621;   People  v.  Bawden,  90  Cal.  196. 

59  People  V.  MeConnell,    82    Cal.    621. 
CO  People  V.  Bawden,    90   Cal.   196. 

f'l  People  V.  Ward,  105  Cal.  652. 

•52  People  V.  Ebanks,    120    Cal.    626. 

63  Kalloch  V.  Superior   Court,    56   Cal.    229;    People   v.    Mc- 

Curdy,  68  Cal.   579;    People  v.  Cokahnour,  120  Cal.  254; 

People  V.  Wheeler,  65  Cal.  77;  People  v.  Staples,  91  Cal. 

26;   People  v.  Howard,  111  Cal.  659. 
6*  People  V.  Goldenson,  76  Cal.  328. 
65  People  V.  Christian,    101    Cal.    471. 


288  CRIMINAL  LAW  AND  PBOCEDURE. 

must  constitute  the  basis  of  the  prosecution  and,  if  insuffi- 
cient to  charge  a  public  offense,  no  information  can  be  sus- 
tained.®' 

SUGGESTIONS  TO  MAGISTRATES. 

In  drawing  complaints,  either  for  felonies  or  misde- 
meanors, the  justice  of  the  peace  should  be  careful  to  ascer- 
tain the  name  of  the  person  against  whom  the  offense  was 
committed,  and  the  true  name  of  the  defendant,  and  have 
them  correctly  stated  in  the  complaint.  If  the  name  of  the 
defendant  be  not  known,  he  may  be  complained  against 
under  a  fictitious  name,  with  a  statement  that  his  true  name 
is  to  the  affiant  unknown.  The  formal  part  of  the  com- 
plaint may  be  as  follows : 

FORM   OF  COMPLAINT. 

"  In  the  Justice's  Court  of  township,  in  the  county 

of ,  state  of  California,  before ,  a  justice  of 

the  peace  in  and  for  said  township, 

66  People  V.  Howard,  111  Cal.  655. 

It  was  first  held  in  this  state  that  the  commitment 
might  be  for  any  offense  proved  by  the  testimony,  irre- 
spective of  the  charge  in  the  complaint.  People  v. 
Wheeler,  73  Cal.  352;  Peoplie  v.  Staples,  91  Cal.  26  ,  or 
of  the  terms  of  the  commitment;  Ex  parte  Keil,  85 
Cal.  309;  Ex  parte  Nicholas,  91  Cal.  643,  ana  that  no 
objections  could  be  made  to  the  complaint  even  where 
the  offense  described  therein  differed  from  the  one  in 
the  commitment.  People  v.  Smith,  1  Cal.  9;  People 
V.  Staples,  91  Cal.  23.  And  this  irrespective  of  the 
endorsement  by  the  magistrate  of  the  crime  for  which 
he  held  defendant,  but  the  court  held  that  information 

•  must  be  confined  to  the  charge  in  the  commitment, 
where  no  depositions  were  returned  People  v.  Lee 
Ah  Chuck,  66  Cal.  662;  People  v.  Vierra,  67  Cal.  234; 
People  V.  Giancoli,  74  Cal.  646;  People  v.  Staples,  91 
Cal.  27;  People  v.  Parker,  91  Cal.  93;  Ex  parte  Nicholas, 
91  Cal.  443;  People  v.  Wallace,  94  Cal.  501.  It  was 
held  in  People  v.  Parker  that  the  information  must  be 
based  on  the  offense  stated  in  the  commitment  or  on 
facts  iLisclosed  by  the  deposition.  This  was  approved 
In  Ex  parte  Nicholas,  91  Cal.  643,  and  People  v.  Wal- 

'  lace,  94  Cal.  501.  And  it  was  held  in  People  v.  Beam, 
66  Cal.  394„  that  the  commitment  would  not  be  set  aside 
when  the  proceedings  were  regular,  although  it  was 
not  based  on  any  charge  for  which  the  defendant  was 
held  to  answer.  But  all  these  cases  have  been  over- 
ruled and  set  aside  by  the  cases  of  People  v.  Christian 
and  People  v.  Howard,  and  the  rule  now  is  as  stated 
in   the   text. 


FORM  OF  COMPLAINT.  28& 

The    People   of   the    state   of    California   against    , 

defendant.   ' 

Personally   appeared   before   me,   this   —   day   of  ^ 

190 — ,  C  D,  who,  being-  first  duly  sworn,  complains  and 
says,  that  at  and  in  the  county  of ,  state  of  Califor- 
nia, on  or  about  the  —  day  of  ,  A.  D.   190 — ,  and 

before   the   filing  of  this  complaint,   one  A  B  committed 

the  crime  of  in  this ;  that  the  said  A  B   at  and 

in  the  county  and  state  aforesaid,  on  or  about  the  date 
aforesaid,  did  [here  set  out  facts  constituting  the  particular 
oflfense  intended  to  be  charged;]  arid  all  of  which  is  con- 
trary to  the  form  of  the  statute  in  such  cases  made  and 
provided,  and  against  the  peace  and  dignity  of  the  people 
of  the  state  of  California.  Said  complainant  therefore  prays 
that  a  warrant  may  be  issued  for  the  arrest  of  said  A  B, 
and  that  he  may  be  dealt  with  according  to  law.  [Signed 
C  D.]     Subscribed  and  sworn  to  before  me  this  —  day  of 

,  A.   D   190 — ,  E  F,  justice  of  the  peace  of  

township,  county  of  ,  state  of  California." 

A  form  for  the  statement  of  the  particular  offense  desired 
to  be  charged  may  be  found  under  the  head  of  "  Specific 
Offenses,"  treated  in  this  volume.  Printed  blank  forms 
of  complaint  will  be  furnished  by  the  district  attorney.  In 
the  use  of  these  blanks  care  should  be  exercised  in  charging 
the,  particular  offense. 

WARRANT  OF  ARREST. 

If  the  magistrate  is  satisfied  from  his  examination  of  the 
facts  disclosed  to  him  by  the  prosecutor  and  his  witnesses 
that  such  facts  tend  to  establish  a  public  offense,"*  and  there 
is  reasonable  ground  to  believe  that  the  defendant  has  com- 
mitted it,  he  must  issue  a  warrant  of  arrest."  The  war- 
rant must  be  directed  to  a  peace  officer,''"  and  must  specify 
the  name  of  the  defendant,  or  if  it  is  unknown  to  the  magis- 
trate, the  defendant  may  be  designated  therein  by  any 
name.     It   must    also   state   the   time   of   issuing   and   the 

68  Penal  Code  812.  . 

C9  Penal  Code  813.  * 

70  Penal  Code  816. 


CRIMES--19 


290  CRIMINAL  LAW  AND  PROCEDURE. 

••County,  city  or  town  where  issued,  and  be  signed  by  the 
magistrate  with  his  name  of  office/^     It  should  be  in  the 
name  of  the  people,  commanding  the  arrest  of  the  defend- 
ant, and  may  be  substantially  in  the  following  form: 
"  County  of . 

"  The  People  of  the  state  of  California  to  any  sheriff,  con- 
stable,  marshal   or   policeman   of   said   state,   or   of   the 

county  of . 

"  Information  on  oath  having  been  this  day  laid  before 

me  by  A  B,  that  the  crime  of [designating  it]  has 

been  committed,  and  accusing  C  D  thereof,  you  are  there- 
fore commanded  forthwith  to  arrest  the  above  named  C  D 
and  bring  him  before  me  at,  [naming  the  place]  or  in  case 
of  my  absence  or  inability  to  act,  before  the  nearest  or  most 
accessible  magistrate  in  this  county. 

"  Dated  at ,  this  —  day  of ,  nineteen  hundred 

and  . 


"  Justice  of  the  Peace County." 

THE    ARREST. 

The  next  step  is  the  arrest  of  the  defendant.  It  is  made 
by  an  actual  restraint  of  the  person  of  the  defendant,  or  by 
his  submission  to  the  custody  of  the  officer.'''^  It  may  be 
made  by  a  peace  officer  or  a  private  person. ^^  An  officer, 
without  a  warrant,  has  authority  to  make  an  arrest  of 
another  when  he  has  reasonable  grounds  to  believe  that 
such  person  has  committed  a  felony.  What  will  consti- 
tute probable  cause  for  arrest  is  always  a  question  of  law,^* 
but  want  of  probable  cause  by  an  officer  pursuing  one  whom 
be  believes  has  committed  a  felony  is  a  question  of  fact."* 
An  arrest  without  a  warrant  may  be  made  for  a  felony, 
though  not  committed  in  the  presence  of  an  officer,  when 
the  criminal  is  fleeing  from  the  scene  of  the  crime.^®     It  is 

,     71  Penal  Code  815. 

72  Penal  Code  835. 

73  Penal  Code  834. 

74  People  V.  Kilvington,    104    Cal.    86. 

75  People  V.  Melendrez,    129    Cal.    549. 
70  People  V.  Pool,    27    Cal.    573. 


PROCEEDINGS  BEFORE  MAGISTRATES.  291 

also  the  duty  of  a  citizen  to  aid  in  the  arrest  and  capture 
of  felons."  The  officer  making  the  arrest  has  the  right  to 
use  all  the  force  which,  from  the  surrounding  circumstan- 
ces, seems  to  him,  as  a  reasonable  man,  necessary.  He  has 
the  right  .to  arm  himself  and  go  armed,  and  where  the 
oflfense  charged  is  a  felony,  he  has  the  right,  if  apparently 
necessary  to  him  as  a  reasonable  man,  to  kill  the  person 
whom  he  is  seeking  to  arrest.  He  has  a  right,  and  it  is  his 
duty,  to  arrest  one  who  has  committed  a  felony,  with  or 
without  a  warrant  ;'*  and  where  the  officer,  under  such  cir- 
cumstances, kills  a  person  by  a  mistake,  he  cannot  be  guilty 
of  any  crime  greater  than  manslaughter.'^"  The  officer  need 
not  disclose  his  official  character  or  the  cause  for  which  he 
makes  the  arrest,  whenever  taking  a  felon  fleeing  from 
arrest.®" 

PROCEEDINGS  BEFORE  MAGISTRATE. 

When  the  defendant  is  brought  before  the  magistrate 
upon  an  arrest,  either  with  or  without  a  warrant,  on  a 
charge  of  having  committed  a  public  ofTense,  the  magis- 
trate must  immediately  inform  him  of  the  charge  against 
him,  and  of  his  right  to  the  aid  of  counsel  in  every  stage 
of  the  proceedings. *°^  He  must  also  allow  the  defendant 
a  reasonable  time  to  send  for  counsel,  and  postpone  the 
examination  for  that  purpose  f^  and  must,  upon  the  request 
of  the  defendant,  require  a  peace  officer  to  take  a  message 
to  any  counsel  in  the  township  or  city  the  defendant  may 
name.  The  officer  must,  without  delay  and  without  fee, 
perform  that  duty.^^  The  right  to  have  the  assistance  of 
counsel  is  a  constitutional  one.®^  If  the  defendant  requires 
the  aid  of  counsel,  the  magistrate  must,  immediately  after 
the  appearance  of  counsel,  or  if,  after  waiting  a  reasonable 

~^  People  v.  Raten,   63   Cal.   424. 

78  People  V.  Adams,    85   Cal.    235. 

79  People  V.  Melendrez,    129    Cal.    549;    People    v.    Kilving- 
ton,    104   Cal.    86. 

80  People  V.  Pool,  27  Cal.   573. 
8oa  Penal   Code  858. 

81  People  V.   Flannelly,   128  Cal.   83. 

82  Penal  Code  859. 

S3  Art.   1,  sec.   13,  Constitution. 


292  CRIMINAL  LAW  AND  PROCEDURE, 

time  therefor,  none  appears,  proceed  to  examine  the  case.** 
The  examination  must  be  completed  at  one  session,  unless 
the  magistrate,  for  good  cause  shown  by  affidavit,  postpone 
it.  The  postponement  cannot  be  for  more  than  two  days 
at  each  time,  nor  more  than  six  days  in  all,  .unless  by 
consent  or  on  motion  of  the  defendant,*"  and  this  should 
appear  by  entry  in  the  docket.  By  "  session  "  is  meant  the 
time  during  which  the  court  is  in  fact  holding  court  at  the 
place  appointed  and  engaged  in  business.***  Adjournments 
from  day  to  day,  or  from  time  to  time,  are  to  be  construed 
as  recesses  in  the  sessions.*"  Recess  is  the  time  in  which 
the  court  is  not  actually  engaged  in  business.**  If  a  post- 
ponement is  had,  the  magistrate  must  commit  the  defendant 
for  examination,  admit  him  to  bail  or  discharge  him  from 
custody  upon  the  deposit  of  money  instead  of  bail*'  as 
security  for  his  appearance  at  the  time  to  which  the  exam- 
ination is  postponed.^**  The  commitment  for  examination 
is  made  by  an  endorsement,  signed  by  the  magistrate  on 
the  warrant  of  arrest,  to  the  following  effect :  "  The 
within  named  A  B  having  been  brought  before  me  under 
this  warrant,  is  committed  for  examination  to  the  sheriff 

of  ."     If  the  sheriff  is  not  present,  the  defendant 

may  be  committed  to  the  custody  of  a  peace  officer.®^  At 
the  examination,  the  magistrate  must  first  read  to  the 
defendant  the  depositions  of  the  witnesses  examined  on  tak- 
ing the  information;  he  must  also  issue  subpoenas,  sub- 
scribed by  him,  for  witnesses  within  the  state,  required 
either  by  the  prosecution  or  the  defense.**  The  witnesses 
must  be  examined  in  the  presence  of  the  defendant,  and 
may  be  cross-examined  in  his  behalf."^     When  the  exam- 

»*  Penal  Code  860. 

85  Penal  Code  861. 

86  In   re   Gannon,   69   Cal.   545;    Falltrick   v.    Sullivan,   119 
Cal.  617. 

8T  Code   of  Civil   Procedure  74. 

88  In   re   Gannon,   69   Cal.   545;    Falltrick  v.   Sullivan.   119 
Cal.    617. 

89  Penal  Code  1295-7. 
80  Penal  Code  862. 

01  Penal  Code  863. 
«2  Penal  Code  864. 
«•■»  Penal  Code  865. 


PROCEEDINGS  BEFORE  MAGTSTRATFS.  293 

ination  of  witnesses  on  the  part  o£  the  people  is  closed,  any 
witnesses  that  defendant  may  produce  must  be  sworn  and 
examined.^*  While  a  witness  is  under  examination  the 
magistrate  may  exclude  all  witnesses  who  have  not  been 
examined.  He  may  also  cause  the  witnesses  to  be  kept 
separate,  and  to  be  prevented  from  conversing  with  each 
other  until  they  are  all  examined.®''  The  magistrate  must 
also,  upon  the  request  of  the  defendant,  exclude  from  the 
examination  every  person  except  his  clerk,  the  prosecutor 
and  his  counsel,  the  attorney-general,  the  district  attorney 
of  the  county,  the  defendant  and  his  counsel,  and  the  offi- 
cer having  the  defendant  in  custody.**  If,  after  hearing 
the  proofs,  it  appears  either  that  no  public  offense  has  been 
committed,  or  that  there  is  not  sufficient  cause  to  believe  the 
defendant  guilty  of  a  public  offense,  the  magistrate  must 
order  the  defendant  to  be  discharged,  by  an  endorsement  on 
the  depositions  and  statement,  signed  by  him,  to  the  fol- 
lowing effect:  "There  being  no  sufficient  cause  to  believe 
the  within  named  A  B  guilty  of  the  offense  within  men- 
tioned, I  order  him  to  be  discharged."*^  If,  however,  it 
appears  from  the  examination  that  a  public  offense  has 
been  committed,  and  there  is  sufficient  cause  to  believe  the 
defendant  guilty  thereof,  the  magistrate  must  make  or 
endorse  on  the  deposition  an  order,  signed  by  him,  to  the 
following  effect :  "It  appearing  to  me  that  the  offense,  in 
the  within  deposition  mentioned  has  been  committed,  and 
that  there  is  sufficient  cause  to  believe  the  within  named 
A  B  guilty  thereof,  I  order  that  he  be  held  to  answer  to 
the  same,  and  committed  to  the  sheriff  of  the  county  of 

"98     j£   |.}-,g  offense   is  not  bailable,   the   following 

words   must   be   added  to  the   endorsement :    "And   he   is 

hereby  committed  to  the  sheriff  of  the  county  of ."" 

If  the  offense  is  bailable  and  the  defendant  is  admitted  to 
bail,  the  following  words  must  be  added  to  the  order: 
^'And  that  he  be  admitted  to  bail  in  the  sum  of dol- 

94  Penal  Code  866, 
»5  Penal  Code  867. 

96  Penal  Code  868. 

97  Penal  Code  871. 
»«  Penal  Code  872, 
■o'J  Penal  Code  873. 


294  CRIMINAL  LAW*  AND  PROCfiDDRE. 

lars,   and    is   committed   to   the   sheriff   of   the   county   of 

— until  he  gives  such  bail."'*'"    If  the  magistrate  ordef 

the  defendant  to  be  committed  he  must  make  out  a  com- 
mitment, signed  by  him,  with  his  name  of  office,  and 
deliver  it,  with  the  defendant,  to  the  officer  to  whom  he  is 
cfommitted,  or,  if  that  officer  is  not  present,  to  a  peace 
officer  who  must  deliver  the  defendant  into  the  proper 
custody,  together  with  the  commitment.'"'  The  commit- 
ment must  be  to  the  following  effect:    "County  of  

[as  the  case  may  be]  ;  The  people  of  the  state  of  Califor- 
nia to  the  sheriff  of  the  county  of  : 

"An  order  having  been  this  day  made  by  me  that  A  B 
be  held  to  answer  upon  a  charge  of  [stating  briefly  the 
nature  of  the  offense,  and  giving  as  near  as  may  'be  the 
time  when  and  the  place  where  the  same  was  committed], 
you  are  commanded  to  receive  him  into  your  custody  and 
detain  him  until  he  is  legally  discharged.  Dated  this  — 
day  of ,  nineteen  ."'°- 

The  form  of  the  commitment  just  given  is  taken  from 
the  code.  The  magistrate  should  remember  that  Hhe  order 
of  commitment  must  always  be  made ;  that  it  must  be  in 
writing  and  endorsed  upon  the  complaint,  or  the 
depositions  taken  at  the  examination,  or  be  entered  in  the 
docket  and  signed  by  him.  All  these  acts  are  absolutely 
necessary  to  a  legal  commitment.  Care  should  be  taken 
that  in  the  commitment  a  sufficient  description  of  the  crime 
charged  against  the  defendant  should  be  given.  It  is 
always  advisable  to  make  the  endorsement  of  the  order 
of  commitment  on  the  back  of  the  complaint,  as  it  will 
then  appear  that  the  defendant  is  held  for  the  crime  charged 
therein.  Under  the  decisions  of  the  Supreme  Court  he  can 
be  held  for  no  other.  If  the  order  is  not  endorsed  on  the 
complaint,  but  upon  the  depositions  taken  at  the  exam- 
ination or  entered  in  the  docket,  it  is  always  safer  in 
making  the  order  to  describe  the  offense  in  the  language 
of  the  complaint.     By  adopting  such  course  all  difficulty 

100  Penal  Code  875. 

101  Penal  Code  876. 

102  Penal  Code  877. 


PROSECUTING  BY  IJSDICTMENT.  295 

and  doubt  as  to  the  sufficiency  of  the  order  are  removed. 
In  describing  the  crime  in  the  commitment,  which  is  signed 
and  delivered  to  the  officer,  the  justice  should  use  care 
in  stating  the  nature  of  the  offense  and  the  time  and  place 
where  committed.  While  it  is  not  absolutely  necessary 
to  copy  the  language  of  the  complaint,  charging  the  crime, 
yet  such  practice  is  commendable,  for  the  commitment  then 
shows  all  the  necessary  facts.  If  stated  briefly,  there  is 
always  a  possibility  of  omitting  some  important  matter.. 
Most  of  the  defects  in  commitments  and  orders  of  com- 
mitment are  due  to  an  insufficient  description  of  the  offense 
for  which  the  defendant  is  held.  At  the  close  of  an  exam- 
ination the  magistrate  should  immediately  forward  to  the 
county  clerk  the  complaint,  with  the  order  of  commitment 
endorsed  thereon,  the  warrant  of  arrest,  subpoenas  and 
any  exhibits  which  may  have  been  filed  in  the  case.  No 
transcript  of  the  docket  is  necessary.  The  transcript  in 
reported  cases  will  always  be  furnished  by  the  reporter  to 
be  certified,  and  no  other  transcript  is  required.  The 
magistrate  should  also  make  a  commitment  which  he 
should  deliver  to  the  constable  or  sheriff  to  be  left  with  the 
prisoner  at  the  county  jail.  If  bail  is  given,  the  bail  bond 
must  be   forwarded  to  the   county  clerk. 

BY   INDICTMENT. 

GRAND    JURY. 

The  second  mode  of  prosecution  is  by  an  indictment  by 
the  grand  jury,  after  an  examination  before  it.  An  indict- 
ment is  an  accusation  by  the  oath  of  twelve  men  of  the 
same  county  wherein  the  offense  was  committed,  known 
as  the  grand  jury,  returned  to  inquire  of  all  the  offenses 
in  general  in  the  county,  and  finding  a  bill  brought  before 
them  to  be  true.  The  grand  jury  has  no  authority  to  pres- 
ent indictments  for  misdemeanors  and  a  person  arrested 
under  such  an  indictment  will  be  discharged  on  habeas 
corpus.^      Its    jurisdiction    to    investigate    crimes   and    find 

1  In   re  Grosbois,   109   Cal.   445. 


296  CRIMINAL  LAW  AND  PROCEDURE. 

indictments  is  not  aflfected  by  an  order  of  the  court  direct- 
ing the  district  attorney  to  file  an  information  after  a 
demurrer  has  been  sustained.^  Every  presumption  is  in 
favor  of  the  regularity  of  its  proceeding.^  The  absence 
ofi  an  order  of  record  appointing  a  foreman  will  not  invali- 
date an  indictment,  where  it  is  endorsed  by  a  foreman  and 
returned  to  the  court.*  And  the  examination  and  dismissal 
of  a  bill  by  a  grand  jury  is  not  a  bar  to  subsequent  pro- 
•ceeding.^  Nor  can  the  submission  of  the  matter  to  another 
grand  jury  affect  the  right  of  the  people  to  appeal,®  nor 
does  the  dismissal  by  the  grand  jury  prevent  the  district 
attorney  from  filing  an  information.''  A  defendant  may 
voluntarily  testify  before  the  grand  jury,^  and  neither 
the  foreman  nor  any  member  of  the  grand  jury  is  required 
to  inform  him  of  his  right  to  counsel  before  testifying.^ 
A  grand  jury  ought  to  find  an  indictment  when  all  the 
evidence  before  them  taken  together  is  such  as  in  their 
judgment  would,  if  unexplained  or  uncontradicted,  war- 
rant a  conviction  by  a  trial  jury,  and  if  such  evidence 
unexplained  or  uncontradicted  would  not  warrant  such  a 
conviction,  they  ought  not  to  find  an  indictment.^"  The 
obligation  to  secrecy  is  not  violated  by  a  grand  juror  tes- 
tifying as  to  what  witnesses  testified  to  before  the  jury;" 
nor  by  disclosing  the  names  of  witnesses  examined  before 
it,  which  may  be  required  on  motion  to  set  aside  an  indict- 
ment.^- But  he  cannot  be  required  to  disclose  how  he 
voted  upon  the  finding  of  the  indictment.^'*  A  grand  jury 
is  composed  of  nineteen  men,  but  the  concurrence  of  twelve 

^  People  V.  Whelan,   117   Cal.   559. 

■i  People  v.  Mills,    17    Cal.    276. 

*  People  V.  Roberts,    6    Cal.    214. 

5  Ex,  parte  Clarke,  54  Cal.  412;  Kalloch  v.  Superior  Court, 

56  Cal.  236;   Ex  parte  Moan,  65  Cal.  219. 
«  People  V.  Lee,    107   Cal.    477. 
T  Ex  parte  Moan,  65  Cal.  216. 
8  People  V.  King,   28   Cal.   273. 
y  People  v.  Page,  116  Cal.  392. 

10  People  V.  Tinder,   19   Cal.   539. 

11  People  V.  Northey,    77    Cal.    618;    People    v.    Youn~,    31 
Cal.    564. 

12  Ex  parte  Schmidt,  71  Cal.  212. 
"  Ex  parte  Sontag,  64  Cal.  525. 


PROSECUTING  BY  INDICTMENT.  297 

in  finding  an  indictment  is  sufficient.'*  They  are  selected 
in  the  same  manner  as  petit  jurors.'"'  The  judge  may 
excuse  any  member  of  the  grand  jury  without  requiring 
him  to  appear  and  make  excuses  under  oath  in  open 
court.^®  It  is  to  exist  until  it  is  discharged  by  the  court, 
where  it  is  not  impaneled  for  a  particular  time.^"  The  fact 
that  grand  jurors  wej"e  in  court  when  another  person  was 
on  trial  for  the  same  offense  and  heard  the  defendant 
plead  his  privilege  as  a  witness,  is  not  a  disqualification,  if 
it  had  no  effect  upon  them.'*  Neither  does  an  opinion  as 
to  the  guilt  of  the  defendant,  formed  upon  testimony  taken 
before  them,'"  nor  knowledge  of  the  corpus  delicti  dis- 
qualify.^" And  where  they  are  prejudiced  against  a  par- 
ticular defendant,  the  court  may  direct  a  special  grand 
jury  to  pass  on  that  case.-'  Testimony  of  a  grand  juror 
that  he  is  a  naturalized  citizen  is  prima  facie  evidence  of 
citizenship.-^  Neither  the  disqualification  of  members  of 
the  grand  jury,-^  nor  the  irregularity  of  the  impanelment 
can  be  taken  advantage  of  on  motion  to  set  aside  the  indict- 
ment.^* A  grand  jury  may  be  summoned  by  a  special  order 
of  court  after  the  defendant  is  in  custody  charged  with 
murder.-^  An  additional  grand  jury  may  be  summoned 
where  the  regular  venire  is  exhausted,^®  and  where  a  suffi- 

1+  People  V.  Hunter.  54  Cal.  65;  People  v.  Gray,  61  Cal. 
165;  People*  v.  Simmons,  119  Cal.  3;  People  v.  Gate- 
wood,  20  Cal.  147;  People  v.  Butler,  8  Cal.  436;  People 
V.   Roberts,  6  Cal.   214. 

1^'  Peop'e  V.  Crowey,    56    Cal.    36. 

16  People  V.  Hidden,  32  Cal.  445;  People  v.  Millsaps,  35 
Cal.   48. 

1"  In  re  Gannon,  69  Cal.  541;  People  v.' Leonard,  106  Cal. 
302. 

18  People  V.  Northey,    77   Cal.    618. 

i»  People  V.  Northey,    77    Cal.    618. 

20  People  V.  Breen,    130    Cal.    73. 

21  People  V.  Manahan,  32  Cal.  68;  People  v.  Southwell, 
46   Cal.    153. 

22  People  V.  Freeland,  6  Cal.  96;  People  v.  Roberts,  6  Cal. 
215. 

23  People  V.  Simmons,  119  Cal.  1. 

24  People  V.  Goldenson,  76  Cal.  328;  Bruner  v.  Superior 
Court,  92  Cal.  262. 

25  People  V.  Cuintano,  15  Cal.  328;  People  v.  Beatty,  14 
Cal.  567;  People  v.  Rodriguez,  10  Cal.  51;  People  v. 
Moice,    15    Cal.    331. 

■■-;o  People  v.  Leonard,  106  Cal.  302;  People  v.  Sehorn,  116 
Cal.    509. 


29S  CRIMINAL  LAW  AND  PROCEDURE. 

cient  number  of  jurors  fail  to  appear  the  court  may  sum- 
mon a  special  grand  jury.^^  A  grand  jury  summoned  by 
an  improper  officer  is  invalid  and  an  illegal  body,-^  and  an 
indictment  found  by  them  is  invalid.-"  The  court  may 
appoint  an  elisor  to  summon  the  jury  only  where  the 
sheriff  and  coroner  are  both  disqualified.*" 

CHALLENGE  TO   THE  GRAND   JURY. 

If  the  defendant  is  in  custody/^^  or  has  been  held  for 
trial,^^  or  has  had  an  opportunity  to  object  before  indict- 
ment,*^ he  must  make  his  challenge  when  the  jury  is  impan- 
eled, or  his  right  is  waived.  But  if  he  has  not  been  so 
held,  or  is  not  in  custody  when  the  jury  is  impaneled,  he 
must  exercise  his  right  to  challenge  on  arraignment."  A 
challenge  to  a  grand  jury  after  its  discharge  cannot  be 
allowed;  but  if  indicted  and  the  jury  has  been  discharged 
before  the  defendant  has  had  an  opportunity  to  challenge,, 
he  may  have  the  indictment  set  aside  upon  any  ground 
which  would  have  been  good  ground  for  challenge,  either 
to  the  panel  or  to  individual  jurors.*^  An  irregularly 
impaneled  grand  jury  may  properly  find  an  indictment,** 
but  a  body  summoned  as  a  petit  jury  cannot  organize  as 
a  grand  jury.*^     The  competency  of  a  de  facto  grand  jury 

27  People  V.  M'Donnell,  47  Cal.  134;  Levy  v.  Wilson,  69 
Cal.  111. 

28  Bruner  v.  Superior  Court,  92  Cal.  239;  People  v.  Leon- 
ard, 106  Cal  319. 

28  People  V.  Thurston,  5  Cal.  69;  Levy  v.  Wilson,  69  Cal. 
108. 

30  Bruner  v.  Superior  Court,  92  Cal.  239;  People  v.  Fel- 
lows, 122,  Cal.  237. 

81  People  V.  Henderson,  28  Cal.  466;  People  v.  Gieger,  49 
Cal.   643;    People  v.   Travers,   88   Cal.   236. 

32  People  v.  Arnold,  15  Cal.  476;  People  v.  Colmere,  2'i 
Cal.  632;  People  v.  Henderson,  28  Cal.  466;  People  v. 
Phelan,    123    Cal.    551. 

33  People  V.  Hidden,  32  Cal.  445;  People  v.  Stacey,  34 
Cal.   308. 

3*  People  V.  Beatty,  14  Cal.  567;  People  v.  Moice,  15  CaL 
331;  People  v.  Arnold,  15  Cal.  479;  People  v.  Colmere, 
23  Cal.  632;  People  v.  Travers,  88  Cal.  236;  People  v. 
Tnrner,   39   Cal.   370. 

35  People  V.  Travers,    88    Cal.    233. 

36  People  V.  Southwell,  46  Cal.  145;  People  v.  Gray,  61 
Cal.    165. 

37  People  V.  Earnest,  45  Cal.  29;  In  re  Gannon,  69  Cal. 
347. 


PROSECUTING  BY  INDICTMENT.  299 

to  act  cannot  be  questioned  by  a  witness  in  contempt  for 
refusing  to  answer  questions  asked  him  by  such  jury.^^ 
Where  the  challenge  is  sustained  as  to  some  of  the  jurors, 
the  remainder,  if  sufficient  in  number,  is  the  jury.^®  A 
challenge  to  the  panel  is  restricted  to  three  grounds,  viz : 
(i)  That  the  requisite  number  of  ballots  was  not  drawn 
from  the  jury  box  of  the  county;  (2)  That  the  notice 
of  the  drawing  was  not  given,  and  (3)  That  the  draw- 
ing was  not  had  in  the  presence  of  the  officers  designated 
by  law.*°  A  challenge  to  an  individual  grand  juror  may 
be  interposed  for  one  or  more  of  the  following  causes 
only:  (i)  That  he  is  a  minor;  (2)  That  he  is  an  alien; 
(3)  That  he  is  insane;  (4)  That  he  is  a  prosecutor  upon 
a  charge  against  the  defendant;  (5)  That  he  is  a  witness  on 
the  part  of  the  prosecution,  and  has  been  served  with 
process  or  bound  by  undertaking  as  such,  and  (6)  That 
state  of  mind  existing  on  his  part,  which  is  known  in  the 
code  as  actual  bias.*^ 

38  Ex  parte  Haymond,  91  Cal.  545. 

39  People  V.  Colby,    54    Cal.    37;    People    v.    Gray,    61    Cal. 
165. 

40  Penal    Code    895;     People    v.    Southwell,    46    Cal.    154;. 
Bruner  v.   Superior  Court,  92   Cal.   253. 

41  Penal  Code  896. 


CHAPTER  LIII. 


THB    F»I^BAOINGS. 


TESTED  BY  CODE. 

All  the  forms  of  pleading  and  the  rules  by  which  their 
sufficiency  is  to  be  determined,  are  those  prescribed,  not 
by  the  common  law,  but  by  the  code.^ 

INDJCTMENT   AND    INFORMATION. 

The  first  pleading  on  the  part  of  the  people  is  the  indict- 
ment or  information.^  It  must  contain  the  title  of  the 
action,  specifying  the  name  of  the  court  to  which  the  same 
is  presented,  the  names  of  the  parties  and  a  statement  of 
the  acts  constituting  the  offense,  in  ordinary  and  concise 
language,  without  repetition,  and  in  such  manner  as  to 
enable  a  person  of  common  understanding  to  know  what 
is  intended.^ 

VENUE. 

The  indictment  or  information  must  show  the  com- 
mission of  the  crime  within  the  jurisdiction  of  the  trial 
court.*  It  must  show  that  the  crime  was  committed  in  the 
county  and  all  of  the  facts  necessary  to  establish  venue;' 
thus  for  an  offense  committed  on  a  vessel  on  the  inland 
waters  of  the  state,  the  indictment  should  set  forth  all  the 
facts,  giving  the  extraterritorial  jurisdiction,    or    evidence 

1  Penal  Code  948;  People  v.  Dick,  37  Cal.  277;  People  v. 
Lopez,.  90  Cal.  569;  People  v.  Cronin,  34  Cal.  191;  Peo- 
ple V.  Ah  Woo,  28  Cal.  206;  People  v.  Murphy,  39  Cal. 
52. 

2  Penal  Code  949. 

8  Penal  Code  950,    959. 

*  People  V.   Wong  Wang,   92   Cal.   277;   People  v.   Baker, 

100  Cal.  188;    People  v.  Craig,  59  Cal.  370. 
s  People  y.  CNeil,    48   Cal.   257. 


INDICTMENT  AND  INFORMATION.  301 

thereof  will  not  be  admitted,®  but  when  the  crime  is  alleged 
to  have  been  committed  on  a  car  in  a  certain  county  the 
jurisdiction  is  sufficiently  shown  and  a  conviction  will  be 
sustained  in  the  absence  of  evidence,  regardless  of  the 
fact  that  jurisdiction  would  be  in  any  county  through 
which  the  car  passed  in  the  course  of  its  tripJ  And  to 
give  the  court  jurisdiction  of  the  crime  of  burglary,  rob- 
bery, larceny  or  embezzlement  committed  in  another 
county,  it  must  be  alleged  that  the  property  has  been 
brought  into  the  county  where  the  indictment  is  found.^ 
It  is  sufficient  if  the  indictment  lays  the  venue  within  the 
jurisdiction  of  the  court.® 

DESIGNATION    OF    THE    OFFENSE. 

A  wrong  designation  of  the  offense  in  the  indictment 
or  information  is  not  material  where  the  facts  constituting 
the  offense  are  fully  stated. ^°  Where  the  name  given  to 
the  crime  is  not  in  accordance  with  the  facts  charged,  it  is 
a  mere  irregularity.^^  To  designate  the  offense  as  a  felony 
in  the  indictment  is  sufficient  description  of  the  crime.^^  It  is 
not  necessary  to  designate  it  as  a  felony  or  misdemeanor, 
when  the  facts  and  the  name  of  the  crime  are  alleged. ^^  But 
in  burglary,  alleging  that  the  defendant  intended  to  commit 
a  felony,  without  stating  the  particular  felony,  is  bad." 
While  the  offense  intended  to  be  committed  must  be  desig- 
nated, it  need  not  be  designated  other  than  by  name.^^     It 

6  Penal  Code  783;   People  v.  Dougherty,  7  Cal.  396. 

7  Penal  Code  783;    People  v.  Moore,  103  Cal.  510. 

8  People  V.  Scott,    74    Cal.    94;    People    v.    Jockinsky,    106 
Cal.    641. 

9  People  V.  Lafuente,    6    Cal.    202. 

10  People  V.  Fine,  77  Cal.  147;  People  v.  Phipps,  39  Cal. 
326;  People  v.  Cuddihi,  54  Cal.  54;  People  v.  Dalton, 
58  Cal.  228;  People  v.  Sheldon,  68  Cal.  436;  People  v. 
Eppinger,    105    Cal.    36. 

11  People  V.  Cuddihi,  54  Cal.  53;  People  v.  Phipps,  39  Cal. 
326. 

12  People  V.  Beatty,    14   Cal.    566. 

13  People  V.  War,  20  Cal.  117;  People  v.  Dalton,  58  Cal. 
228. 

1*  People  V.  Nelson,  58  Cal.  104;   People  v.  Smith,  86  Cal. 

238. 
15  People  V.  Burns,    63    Cal.    614. 


SOS  CRIMINAL  LAW  AND  PROCEDURE. 

need  not  allege  the  facts  constituting  the  crime,  but  only 
allege  it  in  general  terms." 

NAME   OF   ACCUSED. 

The  purpose  of  alleging  his  name  is  to  identify  him  "and 
there  is  no  difference  between  a  Christian  and  a  surname  in 
this  respect."  It  is  the  accused  person  himself,  and  not 
the  accused  person  by  any  particular  name,  who  is  to  be 
presented  by  the  indictment.  If  indicted  under  a  wrong 
name,  the  true  name  when  discovered  should  be  entered 
on  the  minutes  and  the  accused  tried  as  if  indicted  there- 
under.^* Designating  the  defendant  by  a  wrong  name 
is  not  ground  to  set  aside  the  information."  But  where 
there  is  a  material  variance  between  the  name  in  the  indict- 
ment and  the  judgment  of  conviction,  the  judgment  must 
be  reversed.-"  It  is  otherwise  if  the  variance  is  imma- 
terial.^^ A  variance  in  the  middle  name  is  not  material.^^ 
The  omission  of  "]r.,"^^  or  of  the  middle  name,^*  is  an 
immaterial  variance.^"^ 

STATING    THE    OFFENSE. 

It  is  a  general  rule  that  an  information  or  indictment 
is  sufficient  if  it  describes  •  the  offense  in  the  language  of 
the  statute.  But  the  rule  is  subject  to  the  qualification, 
fundamental  in  the  law  of  criminal  procedure,  that  the 
accused  must  be  apprised  with  reasonable  certainty  of  the 
nature  of  the  accusation  against  him,  to  the  end  that  he 
may  prepare  his  defense  and  plead  the  judgment  as  a  bar 

16  People  V.  Goldsworthy,  130  Cal.  600;  People  v.  Nelson, 
S8  Cal.  107;  People  v.  Burns,  63  Cal.  614;  People  v. 
Smith,   86   Cal.   238. 

17  People  V.  Kelly,  6  Cal.  210;  People  v.  Dick,  37  Cal. 
280. 

18  People  V.  Kelly,  6  Cal.  211;  People  v.  Le  Roy,  65  Cal. 
613;    People  v.  Jim  Ti,  32  Cal.  60. 

i»  People  V.  Le  Roy,  65  Cal.  613. 

20  People  V.  Ah   Cow,   17   Cal.   102. 

21  People  V.  Boggs,  20  Cal.  432;  People  v.  Ah  Kim,  34  CaL 
190. 

22  People  V.  Smith,   103   Cal.   563. 

23  People  V.  Oliveria,  127  Cal.  376. 

24  People  V.  Boggs,   20   Cal.  433. 

25  People  V.  Ah  Kim,  34  Cal.  181;  People  v.  Hughes,  29 
Cal.  262. 


INDICTMENT  idND  INFORMATION.  303 

to  any  subsequent  prosecution  for  the  same  offense.^"  And 
this  is  true  even  where  the  statute  creates  a  new  offense.'^*'^ 
The  statute  defines  robbery  to  be  the  felonious  taking  of 
the  personal  property  in  the  possession  of  another,  but 
does  not  expressly  provide,  as  in  larceny,  that  it  must 
be  the  personal  property  of  another,  yet,  the  ownership 
of  the  property  in  some  person  other  than  the  accused  must 
be  alleged  in  the  indictment.^'^  And  the  crime  of  attempt- 
ing to  suborn  pre  jury,  not  being  a  generic  term  of  any 
class  of  offenses,  the  information  charging  the  offense  in 
those  terms  and  alleging  merely  that  the  defendant 
attempted  to  procure  another  person  to  swear  falsely  and 
commit  perjury  in  a  specified  suit,  is  not  sufficient. ^^  An 
information  charging  that  the  defendant  committed  wilful 
perjury,  is  a  mere  conclusion  of  law.-^  So  in  bribery  the 
specific  facts  constituting  the  statutory  offense  must  be 
stated.  It  is  only  a  conclusion  of  law  to  say  that  the 
defendant  bribed  another,^**  or  that  an  act  was  done 
fraudulently.^^    And  in  prosecution  for  use  of  a  shotgun  of 

26  People  V.  Tomlinson,  66  Cal.  344;  People  v.  Johnson, 
71  Cal.  391;  People  v.  Mahlman,  82  Cal.  587;  People 
V.  Martin,  32  Cal.  91;  People  v.  Burke,  34  Cal.  663; 
People  V.  Lewis,  61  Cal.  366;  People  v.  Sheldon,  68 
Cal.  436;  People  v.  Giacemella,  71  Cal.  48;  People  v. 
Russell,  81  Cal.  618;  People  v.  Forney,  81  Cal.  118; 
People  V.  Harrold,  84  Cal.  570;  People  v.  King,  125  Cal. 
369;  People  v.  Colburn,  105  Cal.  648;  People  v.  Patter- 
son, 102  Cal.  239;  People  v.  Kaiser,  119  Cal.  457:  Peo- 
ple V.  McKenna,  81  Cal.  158;  People  v.  Turner,  65  Cal. 
540;  People  v.  Frigerio,  107  Cal.  151;  People  v.  Vallar- 
ino,  66  Cal.  229;  People  v.  Rogers,  61  Cal.  209;  People 
V.  Keeley,  81  Cal.  212;  People  v.  Markham,  64  Cal.  157; 
People  V.  Edson,  68  Cal.  549;  People  v.  Ward,  110  Cal. 
373;  People  v.  O'Brien,  96  Cal.  171;  People  v.  Burke, 
34  Cal.  661;  People  v.  Rangod,  112  Cal.  672;  People  v. 
Phipps,  39  Cal.  331;  People  v.  White,  34  Cal.  183;  Peo- 
ple V.  Girr,  53  Cal.  629;  People  v.  Marseiler,  70  Cal. 
98;  People  v.  Shuler,  28  Cal.  490;  People  v.  Hunt,  120 
Cal.  281;  People  v.  Dalton,  58  Cal.  228;  People  v.  Am- 
merman,  118  Cal.  26;  People  v.  Savercool,  81  Cal.  651; 
People  V.  Maguire,  26  Cal.  635. 

26a  People  V.    Saviers,    14   Cal.    29. 

27  People  V.  Ammerman,  118  Cal.  23. 

28  People  V.  Thomas,    63    Cal.    482. 

29  People  V.  Turner,   122   Cal.   679. 

30  People  V.  Ward,   110  Cal.  369. 

31  People  V.  McKenna,  81  Cal.  158. 


304  CRIMINAL  LAW  AND  PROCKDURE. 

larger  calibre  than  a  particular  gauge,  the  purpose  of  its  , 
use  must  be  alleged,  as  it  was  the  evident  intention  of  the  . 
legislature  to  prohibit  the  use  of  such  guns  only  for  the 
purpose  of  killing  game  or  other  animals.^'^  Neither  does 
the  rule  apply  to  cases  where  particular  circumstances  are  ' 
necessary  to  constitute  the  complete  offense,^^  as  they  must 
be  alleged.^*  But  where  the  indictment  substantially  fol- 
lows the  statute  and  puts  the  defendant  upon  fair  notice 
of  the  oflFense  charged,  of  the  time,  place  and  circum- 
stances of  its  commission,  it  is  sufficient.'*''  The  defendant 
is  entitled  to  be  apprised  with  reasonable  certainty  of  the 
nature  and  particulars  of  the  crime. ^^  Malicious  mischief 
in.  the  use  of  poisonous  substances,  charged  in  the  language 
of  the  statute,  need  not  allege  the  name  thereof,  nor  that 
it  would  kill,  nor  that  the  act  was  done  feloniously.'^  The 
word  "feloniously"  need  not  be  used  in  an  indictment 
or  information  when  the  facts  constituting  the  offense  are 
charged.^*  If  the  ultimate  facts  be  alleged  in  the  langtiage 
of  the  statute  the  probative  facts  such  as  intent  with  which 
the  assault  is  made,  present  ability,  etc.,  need  not  be 
alleged.-'"'  But  where  the  facts  stated  do  not  constitute 
an  oflFense,  the  court  has  no  jurisdiction  to  pronounce  a 
valid  sentence  and  the  conviction  is  void.*"  Such  defects 
are  not  cured  by  verdict.*^  It  is  essential  to  an  indict-  ' 
ment  that  there  be  a  statement  of  the  acts  constituting  the 
oflFense  and  the  particular  circumstances  thereof,  in 
ordinary  and  concise  language,  and  in  such  a  manner  as 
to  enable  a  person  of  common  understanding  to  know  what 

32  Ex   parte   Peterson,   119   Cal.   578. 

33  People  V.  Ward,   110   Cal.   369. 

34  People  V.  Nell,    91   Cal.   465. 

35  People  V.  Dalton,  58  Cal.  228;  People  v.  Garcia,  25  Cal. 
531;  People  v.  Thompson,  4  Cal.  239;  People  v.  Burke, 
34  Cal.  662;    People  v.  English,  30  Cal.  216. 

30  People  V.  Lee,  107  Cal.  477;  People  v.  Ward,  110  Cal, 
374. 

37  People  V.  Keeley,   81   Cal.   210. 

38  People  V.  Parsons,  6  Cal.  487;  People  v.  Oliveria,  7  Cal. 
404. 

89  People  V.  Savercool,  81  Cal.  650. 
*o  Ex  parte  Kearney,   55   Cal.   212. 

<i  People  V.  Wallace,  9  Cal.  32;  People  v.  Cox,  9  Cal.  33; 
People  V.  Coleman,  10  Cal.  334. 


INDICTMENT  AND  INFORMATION.  306 

is  intended.*^  The  allegation  must  be  direct  and  certain 
as  to  the  party  charged,  the  offense  and  the  particular  cir- 
cumstances, when  they  are  necessary  to  constitute  a  com- 
plete offense,*^  but  where  it  states  the  substantial  facts 
with  sufficient  certainty  to  enable  the  defendant  to  answer 
the  charge,  it  is  sufficient.**  Surplusage  does  not  vitiate.*' 
Technical  defects  not  effecting  the  substantial  rights  of  the 
accused  are  not  material.*®  Defects  of  form,  not  tending 
to  prejudice  the  substantial  rights,  must  be  disregarded.*^ 
Mere  clerical  errors  will  not  aflFect  the  verdict.**  A  failure 
to  demur  waives  all  defect,  except  want  of  jurisdiction  and 
a  failure  to  state  facts  sufficient  to  constitute  an  offense.** 
Ambiguities  and  uncertainties,  in  the  absence  of  special 
demurrer,  do  not  render  the  information  bad  after  a  con- 
viction."*" The  omission  to  allege  that  the  crime  was 
contrary  to  the  form  of  the  statute  is  not  fatal,  as  the 
objection  does  not  go  to  the  jurisdiction,  nor  the  failure 
to  state  a  public  offense."^  And  the  omission  of  the 
name  of  the  county  in  the  title,  when  it  appears  in  the 
body  of  the  information,"*^  or  of  the  word  "information" 
from  the  body,  if  in  the  heading,  is  not  material.'^ 

ALLEGATION    OF    TIME. 

Time   is   only   necessary   to   show   that   the   offense   was 

42  People  V.  Saviers,  14  Cal.  29;  People  v.  Garcia,  25  Cal. 
533;  People  v.  Myers,  20  Cal.  74;  People  v.  Shaber,  32 
Cal.  38;  People  v.  Nelson,  58  Cal.  106;  People  v.  Rodri- 
guez, 10  Cal.  51;  People  v.  Hood,  6  Cal.  236;  People  v. 
De  La  Guerra,  31  Cal.  416. 

43  People  V.  Saviers,    14    Cal.    29. 

44  People  V.  Rozelle,  78  Cal.  84;  People  v.  Ah  Sing,  95 
Cal.    655. 

45  People  V.  Perez,    87    Cal.    122. 

40  People  V.  Hitchcock,    104    Cal.    482. 

47  People  V.  Ah  Sing,  95  Cal.  654;  People  v.  Ferris,  56 
Cal.  442;  People  v.  Rozelle,  78  Cal.  90;  People  v.  Smith, 
103  Cal.  567;  People  v.  O'Brien,  64  Cal.  53;  People  v. 
Dick,  37   Cal.   277. 

48  People  V.  Monteith,   73   Cal.   7. 

40  People  V.  Burgess,  35  Cal.  115;  People  v.  Villarino,  66 
Cal.  230;  People  v.  Gatewood,  20  Cal  147;  People  v. 
Apple,   7  Cal.   290. 

50  People  V.  Nesbitt,    102   Cal.    327. 

51  People  V.  Taylor,    119    Cal.    113. 

52  People  V.  Biggins,    65    Cal.    564. 

53  People  V.  Baker,   100   Cal.   188. 

CRIMES--20 


306  CRIMINAL  LAW  AND  PROCEDURE. 

^before  the  finding  of  the  indictment,  and  in  murder  that  it 
was  within  a  year  and  a  day  before  the  death.°*  The 
crime  must  be  alleged  to  have  been  committed  at  "a  time 
before  the  filing  of  the  information,"'*  and  within  bar  of 
statute  of  limitations.'"  It  is  sufficient  if  it  appears  that  the 
oflfense  was  committed  at  a  time  prior  to  the  finding  of 
the  indictment,*^  but  when  the  accused  is  convicted  of  man- 
slaughter, under  an  indictment  for  murder,  the  time 
becomes  material  and  the  indictment  should  specify  the 
time  within  the  statute  of  limitations.**  Except  where 
time  is  of  the  essence,  a  crime  alleged  to  have  been  com- 
mitted on  a  day  certain,  may  be  shown  to  have  been  com- 
mitted subsequently,  if  prior  to  the  filing  of  the  informa- 
tion.*® It  is  not  necessary  to  show  the  date  of  the  offense 
prior  to  the  filing,  if  it  can  be  understood  that  the  offense 
was  so  committed.®"  And  a  mistake  in  the  date  which  is 
merely  clerical  is  immaterial."^ 

DESCRIPTION  OF  OWNERSHIP  AND  PROPERTY, 

Where  a  description  forms  a  part  of  the  false  pretenses, 
it  must  be  set  out  exactly  as  made,"^  but  there  need  be  no 
certainty  of  description  where  no  prejudice  is  the  result.'* 
The  question  is  not,  can  a  more  certain  description  be 
given,  but  does  the  indictment  contain  a  sufficient  des- 
cription."* An  allegation  of  what  is  legally  essential  to 
the  offense  charged  can  never  be  rejected  as  surplusage.*' 
Description  of  property  in  general  terms  is  sufficient  after 

84  People  V.  Kelly,  6  Cal.   210. 

B5  People  V.  Cuff,  122  Cal.  589;  People  v.  Rice,  73  Cal.  220. 

56  People  V.  Dinsmore,   102   Cal.   381. 

57  People  V.  Littlefield,   5   Cal.    355. 

58  People  V.  Miller,    12   Cal.    291. 

59  People  V.  Sheldon,    68   Cal.    434;    People   v.    Lafuente,    6 
Cal.    202. 

•0  People  V.  Squires,    99    Cal.    327. 

«i  People  V.  Dinsmore,    102    Cal.    381;    People   v.    Cuff,    122 
Cal.  594. 

62  People  V.  Nesbitt,   102   Cal.   327. 

63  People  V.  Littlefield,  5  Cal.  355;   People  v.  Ah  Woo,  28 
Cal.   211. 

64  People  V.  Ah   Woo.   28   Cal.   207. 

65  People  V.  Myers,   20   Cal.   76. 


INDICTMENT  AND  INFORMATION.  307 

judgment.*®  The  description  of  money  need  not  be^spec- 
ified,  nor  proof  as  to  coin,  number,  denomination  or  kind. 
Money  may  be  alleged  as  lawful  money  of  the  United 
States.®"  Description  of  the  property  need  not  in  any 
event  give  the  details.®*  Ownership  is  sufficiently  stated 
as  being  in  a  certain  company  without  specifying  its 
character,®"  and  a  partnership  may  be  alleged  as  certain 
persons  described  as  partners."'*  Ownership  may  be 
charged  as  in  an  estate  of  a  deceased  person.'^^  But  a  des- 
cription of  a  deadly  weapon  must  charge  the  facts  which 
show  the  weapon  was  deadly,*^^  that  the  court  may  deter- 
mine therefrom  the  character  of  the  weapon."'^  In  robbery 
the  property  may  be  described  as  belonging  to  the  person 
from  whose  possession  it  was  taken.'^* 

ONE  OFFENSE. 

Only  one  offense  can  be  charged  in  the  same  indict- 
ment,''"  but  where  the  code  enumerates  a  series  of  acts 
either  of  which  separately  or  together  constitute  the  offense 
they  may  be  charged  in  a  single  count.''®     Thus  in  forgery 

66  People  V.  Chuey  Ying  Git,   100   Cal.   437. 

67  People  V.  Cobler,  108  Cal.  538;  People  v.  Righetti,  66 
Cal.  184;  People  v.  Poggi,  19  Cal.  600;  People  v.  Green, 
15  Cal.  512;  People  v.  Millan,  106  Cal.  320;  People  v. 
Winkler,   9   Cal.   234. 

68  People  V.  Stanford.    64    Cal.    27. 

69  People  V.  Henry,  77  Cal.  445;  People  v.  Goggins,  80  Cal. 
231;  People  v.  McDonnell,  80  Cal.  288;  People  v.  Rogers, 
81    Cal.    210. 

70  People  V.  Ribolsi,    89    Cal.    492. 

71  People  V.  Smith,  112  Cal.  333;  People  v.  Prather,  120 
Cal.    662. 

72  People  V.  .Tacobs,  29  Cal.  579;  People  v.  Congleton,  44 
Cal.  94:  People  v.  Villarino,  66  Cal.  229;  People  v. 
Pape,  66  Cal.  367. 

73  People  V.  Pape,  66  Cal.  366. 

74  People  V.  Hicks,  66  Cal.  103;  People  v.  Hanselman,  76 
Cal.  461;   People  v.  Ammerman,  118  Cal.  26. 

75  People  V.  Ouvise,    56    Cal.    396. 

76  People  V.  Frank,  28  Cal.  507;  People  v.  Gosset.  93  Cal. 
643;  People  v.  Leyshon,  108  Cal.  442;  People  v.  Mitchell, 
92  Cal.  590;  People  v.  .Thompson,  111  Cal.  252;  People 
V.  De  La  Guerra,  31  Cal.  461;  People  v.  Tomlinson,  35 
Cal.  508;  Ex  parte  McCarthy,  72  Cal.  386;  People  v.  Har- 
rold,  84  Cal.  568;  People  v.  Gusti,  113  Cal.  177;  People 
V.  Eagan,  116  Cal.  290;  People  v.  Ellenwood,  119  Cal. 
169. 


308  CRIMINAL  LAW  AND  PROCEDURK. 

the  charging  of  raising  a  check  and  making  endorsements 
to  defraud  the  same  person,  is  one  offense/^  as  likewise 
the  forgery,  endorsement  and  uttering.^®  The  selling  of 
liquor  to  Indians  is  one  offense,  although  several  acts 
going  to  make  up  the  offense  are  alleged.^*  Upon  a  charge 
of  rape  of  female  under  age  of  consent,  proof  may  be  made 
of  any  of  the  other  acts  mentioned  in  the  code,®"  but  lar- 
ceny and  receiving  stolen  goods  constitute  two  offenses 
and  cannot  be  charged  in  the  same  indictment,®^  and  the 
charging  of  the  murder  of  three  persons,  charges  three 
offenses  f^  but  a  defendant  may  be  charged  as  principal 
in  one  count  and  as  accessory  in  another.*^  Burglary  and 
the  breaking  and  entering  of  a  dwelling  house  in  the  day 
time  are  two  offenses  ;®*  so  also  larceny  and  embezzle- 
ment,®" and  burglary  and  larceny.®*  The  objection  to 
charging  two  offenses  in  the  same  indictment  must  be  taken 
by  demurrer,®^  it  cannot  be  taken  advantage  of  by  a 
motion  in  arrest  of  judgment.®®  The  following  have  been 
held  to  constitute  one  offense :  A  previous  conviction 
pleaded  with  another  offense,®"  an  assault  and  murder,"' 
an  attempt  to  kill  by  administering  poison,"*  a  felonious 
pntering-  of  a  hnilding-  with  intent  to  commit  larceny,®'  an 
assault  with  a  deadly  weapon  with  intent  to  commit  mur-* 

77  People  V.  Dole,   122   Cal.   486. 

78  People  V.  Frank,   28   Cal.   507. 

79  People  V.  Gusti,  113  Cal.  177;   People  v.  Faust.   113  Cal. 
172. 

80  People  V.  Vann,  129  Cal.  118;   People  v.  Snyder,  75  Cal. 
324. 

81  People  V.  Hawkins,   34   Cal.   181. 

82  People  V.  Alibez,   49    Cal.    452. 

83  People  V.  Valencia,    43   Cal.    552. 

84  People  V.  Taggart,  43  Cal.  81. 

85  People  V.  De   Coursey,   61   Cal.    134. 
8«  People  V.  Garnett,    29    Cal.    622. 

87  People  V.  Garnett,   29    Cal.    622;    People   v.    Burgess,    35 
Cal.  118;   People  v.  Jim  Ti,  32  Cal.  62. 

88  People  V.  Shotwell,   27   Cal.    394;    People   v.   Jim   Ti,    32 
Cal.  62;  People  v.  Burgess,  35  Cal.  118. 

89  People  V.  Boyle,    64    Cal.    153. 
n<i  People  V.  Weaver,   47    Cal.    106. 
01  People  V.  Cuff,   122  Cal.   589. 

82  People  V.  Henry,  77  Cal.   445;    People  v.   Smith,   86  Cal. 
240. 


INDICTMENT  AND  INFORMATION.  309 

der,*^  and  a  conspiracy  to  commit  election  frauds.'*  The 
same  offense,  however,  may  be  charged  in  different  forms."" 
The  indictment  may  charge,  in  two  separate  counts,  lar- 
ceny and  conversion  by  a  bailee.®^  In  burglary,  ownership 
of  the  goods  in  different  persons  may  be  charged  in  sep- 
arate counts  if  it  appears  it  was  all  the  same  act.®^  Desig- 
nating the  offense  by  the  wrong  name  in  the  information 
does  not  render  it  open  to  objection  of  stating  two 
offenses,""  and  two  offenses  are  not  charged  where  the 
second  count  refers  to  the  first  in  such  a  manner  as  to  show 
it  is  the  same,^''  but  it  must  show  clearly  on  the  face  that 
it  is  the  same  offense.^  An  indictment  charging  as  a  single 
fact  an  attempt  to  commit  two  or  more  offenses  is  not  bad 
for  duplicity,^  thus  burglary  may  be  charged  by  alleging 
an  attempt  to  commit  two  felonies.^  But  in  an  indictment 
for  forgery  two  offenses  are  charged,  where  both  counts 
contain  a  copy  of  the  instrument  and  are  alike,  without 
an  allegation  in  the  second  count  that  they  are  the  same.* 
A  joinder  of  counts  is  permitted  only  where  there  is  a 
joinder  of  offenses.  An  information  which  really  contains 
two  counts  should  charge  the  defendant  in  the  second 
count  as  if  he  had  committed  a  distinct  offense." 

NEGATIVE  QUALIFICATION.' 

A  bare  negative  qualification  need  not  be  alleged ;  it  is 
a  matter  of  defense  at  the  trial. ^  As  in  an  assault  with  a 
deadly  weapon  with  intent  to  inflict  a  bodily  injury,  it  need 
not  allege  the  offense  to  have  been  committed  without  a 

»3  People  V.  Beam,    66    Cal.    394. 
04  People  V.  Eagan,   116   Cal.   287. 

95  People  V.  Connor,   17   Cal.   354. 

96  People  V.  Bcgart,    36    Cal.    245. 

9T  People  V.  Thompson,  29  Cal.  215. 

98  People  V.  Brennan,   121   Cal.  495. 

99  People  V.  Ah    Sam,    41    Cal.    645. 

1  People  V.  Garcia.  58  Cal.   102;    People  v.  Frank,  28  Cal. 
513;    People  v.  Thompson,  28  Cal.  215. 

2  People  V.  Milne,    60    Cal.    71;    People    v.    Hall.    94    Cal. 
597. 

3  People  V.  Thompson,  111   Cal.   256. 
*  People  V.  Shotwell,    27    Cal.    394. 

5  People  V.  Ellenwood,    119    Cal.    166. 
«  People  V.  Nugent,   4   Cal.    341. 


310  ClilMINAL  LAW  AND  PROCEDURE. 

provocation,'  but  the  weapon  or  instrument  must  be 
alleged,*  but  not  the  particular  acts  constituting  the  assault,^ 
nor  that  the  defendant  intended  or  had  present  ability  to  in- 
flict a  violent  injury.^"  In  a  charge  of  rape  it  need  not  be  al- 
leged that  the  party  committing  the  crime  was  of  legal  age  to 
commit  the  same,^^  nor  that  the  party  on  whom  the  crime  was 
committed  was  not  the  wife  of  the  accused,^^  nor  is  it  neces- 
sary to  negative  the  jurisdiction  of  the  federal  court."  But 
facts  relied  on  to  take  the  case  out  of  the  statute  of  limit- 
ations must  be  averred.^* 

ALTERNATIVE  ALLEGATIONS. 

A  disjunctive  or  alternative  allegation  such  as  the 
accused  burned  or  caused  to  be  burned  is  not  sufficient. 
The  allegation  must  be  positive,^^  and  an  allegation  by  way 
of  negative  pregnant  is  insufficient.^^  But  conjunctive 
averments  are  permissible  under  disjunctive  enumerations 
of  the  statute,^'  and  conjunctive  allegations  of  acts  or 
intents  is  permitted  where  the  statute  describes  them  dis- 
junctively." In  perjury  direct  allegation  cannot  be  sup- 
plied by  any  intendment  or  implication ;  and  where  stated 
argumentatively,  or  by  way  of  recitals  or  inference  is 
insufficient."  Inferences  of  fact  cannot  be  used  to  aid  an 
indictment.      The    indictment    must    charge    the    crime    in 

7  People  V.  Nugent,    4    Cal.   341. 

8  People  V.  Vanard,    6    Cal.    562. 

9  People  V.  English,  30  Cal.   218. 

10  People  V.  Forney,  81   Cal.   118. 

11  People  V.  Ah    Yek,    29    Cal.    576;    People    v.    Wessel.    98 
Cal.    352. 

12  People  V.  Estrada,    53   Cal.    600. 

13  People  V.  Collins,    105    Cal.    504. 

14  People  V.  Montejo,  18  Cal.  38. 

15  People  V.  Hood,    6    Cal.    236;    People    v.    Tomlinson,    35 
Cal.   509;    People  v.   Myers,   20  Cal.   79. 

18  People  V.  Griffith,  122  Cal.  212. 

1'  People  V.  O'Brien,    130    Cal.    1;    People   v.    Ah   Woo,   28 

Cal.   206;    People  v.   Tomlinson,   35   Cal.   503;    People  v. 

Thompson,    111   Cal.    242;    People   v.    Leyshon,   108   Cal. 

440. 
18  People  V.  Ah   Woo,   28   Cal.    206;    People   v.    Tomlinson, 

35   Cal.    503. 
18  People  V.  Jones,    123    Cal.    299;    People   v.    Dunlap,    113 

Cal.   72. 


INDICTMENT  AND  INFORMATION.  311 

words. ^*'  An  ambiguous  information  is  fatal. ^^  Presump- 
tion in  aid  of  the  indictment  cannot  be  allowed.  All  pre- 
sumptions are  in  favor  of  the  innocence  of  the  accused.^* 
If  the  facts  stated  are  consistent  with  innocence,  a  pre- 
sumption of  innocence  will  overcome  the  accusation,^^  and 
where  two  interpretations  are  permissible  and  only  one  of 
them  imports  a  crime,  the  indictment  is  bad.^* 

ENDORSEMENTS   AND   SIGNATURES. 

The  endorsements  are  not  essential  to  the  validity  of 
an  indictment.  They  are  only  evidence  of  its  finding  to 
secure  authenticity  and  genuineness.^^  A  failure  to  endorse 
indictment  by  a  foreman  of  a  jury  must  be  taken  advantage 
of  by  motion  to  set  aside,  or  it  is  waived. ^^  The  name  of 
the  district  attorney  may  be  signed  to  the  information  by 
his  assistant,^'^  or  by  his  deputy.^^  And  a  de  facto  assistant 
district  attorney  may  sign  the  name  of  his  principal  by  his 
authority. ^^  The  information  need  not  specify  the  county 
of  which  he  is  the  district  attorney  as  the  court  will  take 
judicial  notice  of  this  fact.^"  The  purpose  of  the  require- 
ment of  the  law  that  the  names  of  the  witnesses  examined 
by  the  grand  jury  shall  be  endorsed  upon  the  indictment  is 
to  inform  both  the  people  and  the  defendant  of  the  names 
of  the  witnesses  upon  whose  testimony  the  indictment  is 
based  and  to  give  them  both  an  opportunity  to  secure  their 
attendance  at  the  trial. ^^  The  use  of  the  surname  of  the 
witness  is  sufficient  if  the  defendant  knew  who  was  meant 

20  People  V.  Robles,   117   Cal.   681. 

21  People  V.  Knox,  119  Cal.  73. 

22  People  V.  Terrill,  127  Cal.  99. 

23  People  V.  Eppinger,   105  Cal.   36. 

24  People  V.  Williams,    35    Cal.    671. 

25  People  V.  Lawrence,  21  Cal.  368. 
2ti  People  V.  Johnston,    48    Cal.    549. 

27  People  V.  Griner,  124  Cal.  19;    People  v.  Turner,  85  Cal. 

432. 
2s  People  V.  Etting,    99    Cal.    577;    People   v.    Darr,   61   Cal. 

554. 
20  People  V.  Turner,   85   Cal.   432. 

30  peope  V.  Ashnauer,   47   Cal.   98;    People  v.   Etoanks,   117 
Cal.    652. 

31  People  V.  Quinn,    127    Cal.    542;    People    v.    Northey,    77 
Cal.    629. 


312  CRIMINAL  LAW  AND  PROCEDURE, 

thereby.^-  The  defendant's  name  need  not  be  endorsed, 
although  a  witness.^^  The  law  does  not  require  that  the 
names  of  witnesses  should  be  endorsed  on  an  information 
but  only  on  an  indictment,^*  nor  does  it  require  the  names 
of  witnesses  whose  depositions  were  read  before  the  grand 
jury.^*  An  objection  to  the  indictment  upon  the  ground 
that  it  was  not  endorsed  as  required  by  law  must  be  taken 
before  demurrer  or  plea  or  in  any  event  before  the  trial 
jury  is  impaneled,"®  and  must  be  taken  by  motion  to  set 
aside."'  The  objection  that  an  endorsement  "a  true  bill" 
was  not  made  must  be  taken  in  the  same  way,"^  but  a 
variance  in  name  endorsed  is  not  ground  for  setting  aside 
the  indictment."®  A  failure  to  make  such  endorsement  does 
not  preclude  the  witness  from  testifying  at  the  trial.*"  An 
indictment  or  information  may  be  amended  at  any  time 
before  arraignment,*^  and  the  alteration  after  arraignment, 
although  a  dangerous  practice,  if  not  prejudicial  to  the 
substantial  rights  of  defendant,  is  not  error.*- 

32  People  V.  Quinn,  127  Cal.  542;  People  v.  Crowey,  56 
Cal.  36;  People  v.  Breen,  130  Cal.  72;  People  v.  Northey, 
77  Cal.  629. 

33  People  V.  Northey,  77  Cal.  618;  People  v.  Page,  116  Cal. 
392. 

34  People   V.   Neary,   104  Cal.   373. 

35  People  V.  Northey,  77  Cal.  618. 

36  People  V.  Lawrence,  21  Cal.  368;  People  v,  Symonds, 
22  Cal.  354;  People  v.  King,  28  Cal.  262;  People  v. 
Stacey,  34  Cal.  308;   People  v.  Blackwell,  27  Cal.  67. 

37  People  V.  Freeland,  6  Cal.  96;  People  v.  Symonds,  22 
Cal.  354;  People  v.  Northey,  77  Cal.  629;  People  v.  Lopez, 
26  Cal.  113;  People  v.  King,  28  Cal.  262;  People  v.  Joce- 
lyn,  29  Cal.  563;  People  v.  Stacey,  34  Cal.  308. 

38  People  V.  Lawrence,  21  Cal.  368. 
30  People  V.  Crowey,  56  Cal.  36. 

40  People  V.  Lopez,  26  Cal.  113;  People  v.  Jocelyn,  29  Cal. 
562;   People  v.  Bonney,  19  Cal.  427. 

41  People  V.  Rodley,  131  Cal.  240;  Terrill  v.  Superior  Court. 
60  Pac.  Reporter  516. 

42  People  V.  Carroll,  92  Cal.  568. 


CHAPTER  LIV 


THK  ARRAIONIVIKNT 


Upon  the  filing  of  the  indictment  or  information  the 
defendant  must  be  arraigned.  If  the  charge  be  a  felony 
the  defendant  must  be  personally  present,  but  on  a  charge 
of  a  misdemeanor  he  may  appear  for  arraignment  by 
counsel.  If  the  defendant  appears  for  arraignment  with- 
out counsel  he  must  be  informed  by  the  court  of  his  right 
to  counsel  and  asked  if  he  desires  the  aid  of  counsel.  If 
he  does  and  is  unable  to  employ  counsel  the  court  must 
assign  counsel  to  defend  him.  The  arraignment  consists  in 
reading  the  indictment  or  information  to  the  defendant 
and  delivering  him  a  copy  thereof,  with  the  endorsements 
thereon,  including  the  list  of  witnesses  and  asking  whether 
he  pleads  guilty  or  not  guilty  to  the  indictment  or  infor- 
mation.^ 

OBJECTIONS   TO  THE    INDICTMENT   OR   INFORMATION. 

All  objections  to  the  indictment  must  be  taken  before 

the  plea,^  except  as  to  want  of  jurisdiction  and  the  failure 

to  state  facts  sufficient  to  constitute  a  public  offense.  These 
questions  may  be  raised  at  any  time.^ 

MOTION    TO    SET    ASIDE. 

A  motion  to  set  aside  must  be  made  before  a  demurrer 
or  plea,*  and  is  confined  to  the  following  grounds :  If  it  be 
an  indictment,  that  it  is  not  found,  endorsed  and  presented 

1  Penal    Code    976-988;    People    v.    Corbett,    28    Cal.    328; 

People  V.  Villarino,  66  Cal.  228. 
-'  People  V.  Turner,  39  Cal.  370;   People  v.  Stacey,  34  Cal. 

307. 

3  People  V.  Villarino,  66  Cal.  230. 

4  People  V.  King,  28  Cal.  266;  People  v.  Jtacey,  34  Cal.  308. 


814  CRIMINAL    LAW    AND    PROCEDURK 

as  prescribed  in  the  code;*  that  the  names  of  the  witnesses 
examined  before  the  grand  jury  or  whose  depositions  may 
have  been  read  before  them  are  not  inserted  at  the  foot  of 
the  indictment  or  endorsed  thereon  ;"  that  a  person  unauthor- 
ized by  law  was  permitted  to  be  present  during  the  session 
of  the  grand  jury,  and  when  the  charge  embraced  in  the 
indictment  was  under  consideration  '^  or  when  the  defend- 
ant had  not  been  held  to  answer  before  the  finding  of  the 
indictment,  on  any  ground  which  would  have  been  good 
ground  for  challenge,  either  to  the  panel  or  to  any  indi- 
vidual juror.*  The  clause  "found  as  prescribed  in  the 
code"  means  simply  that  it  must  be  concurred  in  by  twelve 
grand  jurors.  No  objection  to  the  selection,  summoning 
or  impaneling  of  the  grand  jury  can  be  made  on  this 
ground.®  And  if  it  be  an  information,  that  before  the 
finding  thereof  the  defendant  had  not  been  legally  com- 
mitted by  a  magistrate  or  that  it  was  not  subscribed  by  the 
district  attorney  of  the  county."  In  case  of  an  information 
no  objection  can  be  based  on  the  fact  that  the  district 
attorney  who  filed  the  complaint  before  the  magistrate  had 
no  personal  knowledge  of  the  facts."  When  made  on  the 
ground  of  an  illegal  commitment  mere  errors  of  the  magis- 
trate,^^ or  defects  in  the  complaint  before  the  magistrate,^* 

5  Penal  Code  995;  People  v.  Crowey,  56  Cal.  38;  People 
V.  Southwell,  46  Cal.  145. 

e  Ex  parte  Schmidt,  71  Cal.  212, 

t  Penal  Code  995;  People  v.  Ah  Chung,  54  Cal.  398.  An 
Interpreter  is  a  witness  and  when  necessary  to  be  pres- 
ent must  be  sworn.  He  is  not  an  unauthorized  person 
within  the  meaning  of  the  code.  People  v.  Lem  Deo, 
132  Cal.  199. 

«  Penal  Code  995;  People  v.  Travers,  88  Cal.  233.  In  re 
Gannon,  69  Cal.  547;  People  v.  Colby,  54  Cal.  37;  Peo- 
ple V.  Hunter,  54  Cal.  65;  People  v.  Simmons,  119  Cal. 
2;   People  v.  Van  Horn,  119  Cal  .  323. 

»  People  V.  Colby,  54  Cal.  37;  People  v.  Goldenson,  76 
Cal.   328. 

10  People  V.  Tarbox,  115  Cal.  60;  People  v.  Bawden,  90 
Cal.  200;  People  v.  More,  68  Cal.  503;  Ex  parte  Moan, 
65  Cal.  218;  People  v.  Le  Roy,  65  Cal.  614;  People  v. 
Ah  Fook,  64  Cal.  382;  People  v.  McConnell,  82  Cal.  620; 
Ex  parte  Baker,  88  Cal.  84;  People  v.  Schmidt,  64  Cal. 
261. 

11  People  V.   Cole,  127  Cal.  545. 

12  People  V.  Van  Horn,  119  Cal.  323. 

13  People  V.  Dolan,  96  Cal.  315. 


THE  ARRAIGNMENT.  315 

or  irregularities  not  affecting  the  substantial  rights  of  the 
defendant  cannot  be  reviewed.^*  A  dismissal  of  an  infor- 
mation or  indictment  is  not  a  bar  to  a  further  examination 
before  the  magistrate.^"  Where  there  is  nothing  in  the 
record  to  show  that  the  appearance  and  testimony  of  the 
defendant,  before  the  grand  jury,  was  not  voluntary,  it  is 
not  ground  for  a  motion  to  set  aside  the  indictment  that  the 
defendant  was  not  informed  of  his  legal  rights  as  a  wit- 
ness or  that  his  name  was  not  endorsed  as  a  witness  upon 
the  indictment.^"  An  order  setting  aside  an  indictment 
does  not  operate  as  an  acquital  of  the  offense  charged  and 
is  not  a  bar  to  a  subsequent  proceeding."  An  appeal  does 
not  lie  from  the  order  setting  aside  an  information,^^  but 
when  the  defendant  is  discharged  it  becomes  a  final  judg- 
ment and  is  appealable.^® 

PLEAS    OF    DEFENDANT. 

The  only  pleading  on  the  part  of  the  defendant  is  either 
a  demurrer  or  plea ;  and  both  must  be  put  in,  in  open  court, 
either  at  the  time  of  the  arraignment  or  at  such  other  time 
as  may  be  allowed  to  the  defendant  for  that  purpose.^" 

DEMURRER. 

Objections  to  the  form  of  the  indictment  or  information 
should  be  taken  by  demurrer,-^  and  a  failure  to  demur 
waives  all  defects  except  want  of  jurisdiction  and  the 
objection  that  the  facts  stated  do  not  constitute  a  public 
offense.^-  A  demurrer  is  the  only  remedy  where  the  objection 
is  that  the  offense  is  not  sufficiently  described,"^  and  is  proper 

1*  People  V.   Rodrigo,   69   Cal.   602;    People  v.   Sehorn,   116 

Cal.   505. 
i&  Patterson    v.    Conlan,    123    Cal.    453;    Ex    parte    Clarke 

54  Cal.   415. 
i«  People  V.  Page,  116  Cal.  386. 
IT  Ex  parte  Foss,  102  Cal.  347. 
J 8  People  V.   Kicliter,  113  Cal.  473;    People  v.   Higgins.  114 

Cal.  64. 

19  People  V.  More    68  Cal.  504.  •      .. 

20  Penal  Code  1002-1003. 

21  People  V.  Jim  Ti,  3z  Cal.  60;  People  v.  Villarlno,  66 
Cal.   230;    People   v.   Feilen,  58   Cal.  218. 

22  People  V.  Villaririo,  J6  Cal.  230;  People  v.  Bryon,  103 
Cal.  675;  People  v.  Cox,  40  Cal.  275;  People  v.  Jim  TI, 
32  Cal.  60. 

23  People  V.  Swenson,  49  Cal.  388;  People  v.  Villarino^ 
66  Cal.  230. 


316  CRIMINAL  LAW  AND  PROCEDURE. 

when  the  offense  is  barred  by  the  statute  of  limitations.^* 
But  a  demurrer  will  not  reach  defects  in  the  copy  of  the 
information  served  on  defendant. ^°  An  order  sustaining 
a  demurrer  to  an  indictment  is  appealable,^®  but  a  failure 
of  the  people  to  except  to  a  rulmg  ot  the  court  sustaining 
a  demurrer  is  a  waiver  by  them  of  the  right  to  appeal." 
An  order  allowing  a  confession  of  demurrer  to  the  infor- 
mation, with  direction  to  the  district  attorney  to  file 
another  is  in  effect  an  order  sustaining  the  demurrer.^^ 
Upon  an  order  to  file  a  new  information  after  demurrer 
sustained  there  need  be  no  finding  of  the  court  that  the 
objection  can  be  overcome  by  the  filing  of  a  new  one,^®  and 
upon  a  demurrer  to  an  indictment  being  sustained  the 
defendant  is  not  required  to  be  examined  before  a  magis- 
trate, but  the  case  may  be  referred  to  a  second  grand 
jury.^° 

THE  PLEA. 

There  are  four  kinds  of  pleas :  A  plea  of  guilty,  not 
guilty,  a  former  judgment  of  conviction  or  acquittal,  and 
once  in  jeopardy. ^^  Every  plea  must  be  oral  and  entered 
upon  the  minutes  of  the  court.^*  The  plea  is  absolutely 
necessary  to  make  an  issue;  and,  if  there  be  no  plea,  the 
trial  is  an  absolute  nullity  and  no  judgment  can  be  based 
upon  the  conviction.  The  defendant  cannot  waive  this 
question  by  going  to  trial  without  it,^^  but  mere  irregu- 
larities on  arraignment  are  waived  by  asking  time  to 
plead. ''^      And    where   a   plea   is   withdrawn   and   no   sub- 

24  People  V.  Ayhens,  85  Cal.  86. 
23  People  V.  Owens,  132  Cal.  471. 

26  People  V.   Jordan,  65  Cal.   644. 

27  People  V.  Wooster,  16  Cal.  435;  People  v.  Lee,  107  Cal. 
478. 

28  People  V.  Biggins,  65  Cal.  564. 

29  People  V.  O'Leary,  77  Cal.  30. 

30  People  V.  Sexton,  132  Cal  37. 

31  Penal- Code  1016. 

32  Penal  Code  1017;   People  v.  Johnson,  47  Cal.  122. 

33  People  V.  Corbett,  28  Cal.  328;  People  v.  Samario,  84 
Cal.  484;  People  v.  Midnagban,  102  Cal.  229;  People,  v. 
Gaines,  52  Cal.  479;    People  v.   Bowman,  81  Cal.  566. 

34  People  V.  Lightner,  49  Cal.  226. 


THE  ARRAIGNMENT.  317 

sequent  plea  is  entered,  a  conviction  cannot  be  sustained; 
and  granting  time  to  plead  rebuts  the  presumption  that  it 
was  understood  that  the  original  plea  was  to  stand  as  the 
subsequent  plea.^'^  When  the  original  information  states 
no  offense  and  there  is  no  arraignment  or  plea  to  the 
amended  information,  no  issue  is  joined  and  no  conviction 
can  be  had.^®  If  the  record  on  appeal  fails  to  show  th&t  the 
defendant  was  arraigned  and  pleaded,  the  court  will  assume 
that  there  was  no  arraignment  or  plea.^^  The  verdict  must 
find  on  each  plea  entered  by  the  defendant  or  there  can  be 
no  judgment  of  conviction.^*  No  presumption  of  a  with- 
drawal of  any  of  the  pleas  will  be  indulged  in.^®  The  plea 
of  not  guilty  puts  in  issue  the  locus  delicti  as  well  as  all 
other  material  allegations  of  the  information  or  indict- 
ment.*" Upon  a  plea  of  guilty  the  court  must  determine 
the  degree  of  the  offense.*^  Where  the  defendant  stands 
mute,  it  is  the  duty  of  the  court  to  enter  a  plea  of  not 
guilty  ;*^  but  where  the  defendant  refuses  to  plead,  after 
the  demurrer  is  overruled,  the  court  may  pronounce 
judgment  against  him,*^  or  direct  a  plea  of  not  guilty  to  be 
entered.**  But  the  court  cannot  pronounce  a  judgment 
against  the  defendant  who  declines  to  plead,  until  after  his 
demurrer  is  overruled.*^  A  plea  of  guilty  must  be  made  by 
the  defendant  himself  in  open  court,  and  if  entered  ina^l- 
vertently  should  be  allowed  to  be  withdrawn.*"  The  court 
may  in  its  discretion  allow  the  defendant  to  withdraw  a 

35  People  V.  Monaghan,  102  Cal.  229. 

36  People  V.  Moody,  69  Cal.  184. 

37  People  V.  Gaines,  52  Cal.  479. 

38  People  V.  Fuqua,  61  Cal.  377;  People  v.  Tucker,  115  Cal. 
388. 

30  People  V.  Fuqua,  61  Cal.  377;  People  v.  Tucker,  115  Cal. 
380. 

4«  Penal  Code  1019;  People  v.  Aleck,  61  Cal.  137;  Peo- 
ple V.  Bevans,  52  Cal.  470. 

41  Penal  Code  1192;   People  v.  Jefferson,  52  Cal.  452. 

42  Penal  Code  1024;  People  v.  McCoy,  71  Cal.  395;  Peo- 
ple V.  Samarlo,  84  Cal.  486. 

43  People  V.  King,  28  Cal.  266;    Penal  Code  1011. 

44  People  V.  Jocelyn,  29  Cal.  563. 

45  People  V.  Monaghan,  102  Cal.  229. 

46  People  V.  McCrory,  41  Cal.  458;  People  v.  Scott,  59  Cal. 
341. 


318  CRIMINAL  LAW  AND  PROCEDURF. 

plea  of  guilty  to  interpose  a  demurrer.*'^  All  objections  to 
irregularities  on  the  arraignment  are  waived  by  a  failure 
to  ask  leave  to  withdraw  the  plea  and  make  the  objection 
to  the  indictment.**  The  leave  to  withdraw  a  plea  to  inter- 
pose a  motion  to  set  aside  the  indictment  rests  in  the  dis- 
cretion of  the  court,  and  the  record  need  not  disclose  the 
court's  reason  for  a  refusal.**  A  plea  cannot  be  withdrawn 
after  the  punishment  is  fixed,"^"  as  the  defendant  cannot 
speculate  on  the  clemency  of  the  court  by  substituting  a 
plea  of  guilty  for  a  plea  of  not  guilty,  with  a  right  to 
retract  if,  before  sentence,  he  finds  his  expectations  will 
not  be  realized. ^^  After  a  juror  has  been  discharged  for 
sickness,  the  court  should  allow  the  defendant  to  interpose 
a  plea  of  former  acquittal  and  once  in  jeopardy. ^^  When 
a  plea  of  guilty  is  withdrawn,  by  permission  of  the  court, 
and  a  plea  of  not  guilty  substituted,  the  plea  of  guilty 
becomes  functus  officio  and  cannot  be  proved  as  an  admis- 
sion or  confession  of  the  defendant.'*^  The  court  may  in  its 
discretion  refuse  to  allow  the  records  to  be  amended  to 
show  a  lack  of  personal  plea  to  the  information,  as  the 
court  is  presumed  to  recollect  what  occurred  in  its 
presence. "^  The  defendant  cannot  impeach  the  record  by 
showing  that  the  plea  was  entered  by  his  counsel."^'  A 
plea  of  guilty,  as  charged  in  the  indictment,  which 
charges  petit  larceny  and  a  previous  conviction  is  a  plea 
of  guilty  to  a  felony. ^^  Where  the  defendant  is  charged 
in  the  indictment  or  information  with  some  particular 
offense,  and  with  having  suffered  a  previous  conviction  of 
another  offense,  and  is  arraigned,  he  may  plead  simply  not 
guilty  and  thus  put  in  issue  every  material  allegation  of 

*T  People   V.   Shem   Ah   Fook,   64   Cal.   380;    People  v.   Mc- 

Crory,  41   Cal.   458. 
48  People  V.  Villarino,  66  Cal.  228. 
48  People  V.  Lee,  17  Cal.  76;  People  v.  Scott,  59  Cal.  342. 

50  People  V.  Lenox,  67  Cal.  113. 

51  People  V.  Miller,  114  Cal.  10;  People  v.  McCrory,  41  Cal. 
458. 

52  People   V.   Stewart,   64   Cal.   60. 

53  People  V.  Ryan,  82  Cal.  617. 

54  People  V.  Samario,  84  Cal.  484. 

55  People  V.  Emerson,  130  Cal.  562. 

56  People  V.  Delany,  49  Cal.  394. 


THE  ARRAIGNMENT.  319 

the  indictment  or  information,'*'  or  he  may  plead  not  guilt}; 
to  the  present  offense  charged  and  confess  the  previous 
conviction.'*®  If  he  confesses  the  previous  conviction,  then 
the  clerk  on  reading  the  indictment  or  information  to  the 
jury,  must  omit  therefrom  all  that  relates  to  such  previous 
conviction,  and  no  testimony  in  regard  to  it  can  be  offered 
or  references  had  to  it  during  the  trial,'^"  but  the  jury  may 
have  its  attention  called  to  a  prior  life  sentence  for  the 
purpose  of  guiding  it  as  to  the  punishment  to  be  inflicted.®" 
On  arraignment  the  court  may  ask  the  defendant  whether 
he  has  suffered  a  previous  conviction,"^  and  in  reading  the 
indictment  to  the  jury  the  alias  under  which  such  con- 
viction was  had  may  be  read."^  The  purpose  of  excluding 
it  from  the  jury  is  to  prevent  credibility  of  the  defendant 
as  a  witness  being  affected  thereby,"^  and  it  will  be  presumed 
in  the  absence  of  a  positive  showing  in  the  record  to  the 
contrary  that  the  conviction  which  was  confessed  was  not 
read  to  the  jury.*'*  Where  the  previous  conviction  is  not 
confessed  and  evidence  is  introduced  to  establish  it,  the 
jury  is  not  authorized  to  consider  it  for  any  other  pur- 
pose."^ After  a  confession  of  a  prior  conviction  on 
arraignment  only  the  question  of  the  guilt  of  the  crime 
charged   need   be   submitted   to   the   jury.®®     No    trial    is 

r.T  People  v.  Wheatley,  88  Cal.  117. 

58  People  V.  Lewis,  64  Cal.  401;  People  v.  Brooks,  65  Cal. 
295;   Ex  parte  Young  Ah  Gow,  73  Cal.  438. 

59  Penal  Code  1093;  People  v.  Meyer,  73  Cal.  548;  People 
V.  Sansome,  84  Cal.  449;  People  v.  Wheatley,  88  Cal. 
117;  People  v.  Thomas,  110  Cal.  43;  People  v.  Arnold, 
116  Cal.  687;  People  v.  Brooks,  65  Cal.  295;  People  v. 
McGregar,  88  Cal.  141;  People  v.  Fowler,  88  Cal.  140; 
People  V.  Gutierrez,  74  Cal.  83. 

'■'1  People  V.  Hong  Ah  Duck,  61  Cal.  387;  People  v.  Majors, 

65  Cal.  147. 
61  People  V.  McGregar,  88  Cal.  140;   People  v.  Wheatley,  88 

Cal.  117. 
02  People  V.  Maroney,  109  Cal.  277. 

63  People  V.  Arnold,   116  Cal.  682. 

64  People  V.  McGregar,  88  Cal.  140;  People  v.  Douglass, 
87  Cal.   281;    People  v.   Flynn,  73  Cal.  511. 

65  People  V.  Von,  78  Cal.  1;   People  v.  Thomas,  110  Cal.  41. 

66  Ex  parte  Young  Ah  Gow,  73  Cal.  438;  People  v.  Meyer, 
73  Cal.  549;  Peonle  v.  Wheatley,  88  Cal.  117;  People  v. 
Brooks,  65  Cal.  295;   People  v.  Barton,  88  Cal.  178. 


320  CRIMINAL  LAW  AND  PROCEDURE. 

required  on  a  plea  of  guilty."^  The  defendant  is,  however, 
estopped  to  deny  the  admission  of  a  prior  conviction  with- 
out first  withdrawing  his  plea  thereto.** 

87  People  V.  Carrolton,  n  Cal.   559;    People   v.  Meyer,  78 

Cal.  549. 
«8  People  V.  Appleton,  120  Cal.  250. 


CHAPTER  LV. 


CONTINTJANCBS. 


ABSENCE  OF    WITNESSES. 

The  accused  person  has  the  right  to  the  personal 
attendance  of  witnesses  on  his  behalf,  and  where  they  can 
be  had  without  unreasonable  delay,  he  has  a  right  to  have 
the  -  cause  continued  for  that  purpose.^  Upon  an  appli- 
cation for  a  continuance  on  the  ground  of  absence  of  wit- 
nesses, the  application  should  be  supported  by  affidavits 
which  show  that  the  applicant  has  used  due  diligence  in 
his  endeavor  to  procure  the  attendance  of  the  witnesses, 
and  in  his  preparation  for  trial. ^  And  diligence  must  be 
shown  also  that  he  has  tried  to  procure  others  who  could 
testify  to  the  same  facts,^  and  that  the  application  is  not 
made  for  delay.*  It  must  further  show  that  the  testimony 
or  presence  of  the  witness  can  be  procured  at  a  sub- 
sequent date.^  The  affidavits  must  be  made  by  the  party 
and  not  by  his  attorney.**     It  must  set  forth  the  reasons 

1  People  V.  Dodge,  28  Cal.  445;  People  v.  Brown,  46  Cal. 
103;  Willard  v.  Superior  Court,  82  Cal.  465;  People  v. 
Francis,  38    Cal.  187. 

2  People  V.  Baker,  1  Cal.  404;  People  v.  Winters,  125 
Cal.  325;  People  v.  Quincy,  8  Cal.  89;  People  v.  Gaunt, 
23  Cal.  158;  People  v.  Williams,  24  Cal.  38;  People  v. 
Sanders,  114  Cal.  216. 

3  People  V.  Williams,  24  Cal.  31. 

4  People  V.  Putman,  129  Cal.  258. 

3  People  V.  Winters,  125  Cal.  325;  People  v.  Ashnauer, 
47  Cal.  98;  People  v.  Leyshon,  108  Cal.  444;  People  v. 
Breen,  130  Cal.  72;  People  v.  Jocelyn,  29  Cal.  562;  Peo- 
ple V.  Lewis,  64  Cal.  402;  People  v.  Dodge,  28  Cal.  445; 
People  V.  Gaunt,  23  Cal.  156;  People  v.  De  Lacey,  28 
Cal.  590;  People  v.  Jenkins,  56  Cal.  4;  People  v.  Cleve- 
land, 49  Cal.  577;  People  v.  Wade,  118  Cal.  673. 

6  People  V.   Jenkins,  56   Cal.   4. 

CRIMES--21 


322  CRIMINAL  LAW  AND  PROCEDURE. 

for  the  belief  and  the  nature  of  the  information  upon  which 
it  is  founded^  It  should  state  the  facts  from  which  the 
court  may  infer  that  the  witness  may  be  procured.*  An 
affidavit  showing  an  unsuccessful  search  for  the  witness 
without  showing  that  his  attendance  can  be  secured  in  a 
reasonable  time,  is  not  sufficient.*  It  must  further  show 
that  the  witness  cannot  be  readily  reached  by  an  attach- 
ment/" and  that  a  subpoena  has  been  issued  for  him  ;^^  that 
the  testimony  is  not  merely  cumulative  and  that  the  appli- 
cation is  not  made  for  delay,^^  and  should. state  the  facts 
the  witness  would  testify  to  if  present,  and  show  that  it 
cannot  be  otherwise  procured.^*  The  testimony  must  be 
relevant  and  material.^*  The  affidavit  must  not  be  made 
in  the  alternative  as,  that  he  can  procure  the  attendance 
of  a  witness  out  of  the  state,  or  his  deposition.^*  The 
accused  is  entitled  to  a  continuance  where  he  was  misled 
by  a  promise  of  the  witness  to  appear  at  the  trial.^"  Upon 
appeal  from  order  refusing  continuance  the  affidavit  used 
in  support  of  the  application  must  be  embodied  in  a  bill  of 
exceptions.^®* 

DISCRETIONARY  WITH   THE  COURT. 

The  granting  or  refusing  of  applications  for  continuances 

7  People  V.  Brown,  46  Cal.  103;  People  v.  Ah  Yute,  53  Cal. 
614;  People  v.  Leyshon,  108  Cal.  444;  People  v.  Francis, 
38  Cal.  183. 

8  People  V.  Ah  Yute,  58  Cal.  614;  People  v.  Lewis,  64  Cal. 
403;  People  v.  Leyshon,  108  Cal.  444;  People  v.  Wade, 
118  Cal.  673. 

9  People  V.  Wade,  118  Cal.  672. 

10  People  V.  Weaver,  47  Cal.  106. 

11  People  V.  Lampson,  70  Cal.  204. 

12  People  V.  Thompson,  4  Cal.  239;  People  v.  Williams, 
24  Cal.  38;  People  v.  Gaunt,  23  Cal.  158;  People  v.  Jen- 
kins, 56  Cal.  6;  People  v.  Francis,  38  Cal.  183. 

13  People  V.  Ah  Fat,  48  Cal.  61;  People  v.  Lampson,  70  Cal. 
204;  People  v.  Wade,  118  Cal.  673;  People  v.  Mellon,  40 
Cal.  648;  People  v.  Quincy,  8  Cal.  89;  People  v.  Gaunt, 
23  Cal.  158;  People  v.  Williams,  24  Cal.  38. 

1*  People  V.  Williams,  43  Cal.  344. 

15  People  V.  Francis,  38  Cal.  183. 

16  People  V.  Brown,  46  Cal.  103. 
i«a  People  V.  Weaver,  47  Cal.  106. 


CONTINUANCES.  323 

rests  in  the  sound  discretion  of  the  court,^'^  but  it  is  an 
abuse  of  discretion  to  refuse  a  continuance  when  a  proper 
showing  is  made.^*  It  is  not,  however,  to  refuse  a  con- 
tinuance to  enable  the  prosecution  to  procure  witnesses." 
And  it  is  not  an  abuse  of  discretion  where  there  is  no  show- 
ing that  the  appHcation  is  made  in  good  faith.^°  An  appli- 
cation in  bad  faith,-^  or  which  is  too  long  delayed,  should 
be  denied. ^^ 

ON    WHAT    PROCEEDINGS    GRANTED, 

Where  the  failure  to  endorse  the  names  of  the  witnesses 
on  the  indictment;  operates  as  a  surprise  to  the  defendant,  a 
continuance  should  be  granted  on  a  proper  showing, ^^  but 
the  application  must  be  supported  by  affidavits.^*  It  may 
be  had  for  the  purpose  of  producing  evidence  upon  a 
motion  to  set  aside  an  indictment,^^  or  for  further  time  for 
pronouncing  judgment.^^  But  the  trial  will  not  be  post- 
poned until  the  determination  of  an  appeal  on  the  issue  of 
insanity.^^ 

ADMISSION   OF  THE  FACT. 

If  the  prosecution  admits  the  fact  the  applicant  intends 
to  prove  by  the  absent  witnesses,  the  court  may  refuse  the 
continuance,^®  but  to  defeat  the  application,  the  people  must 
admit  the  truth  of  the  facts  made  in  the  affidavit,  not 
merely   that   the    witness   would    so    testify.^^      But    the 

17  People  V.  Jocelyn,  29  Cal.  562;  People  v.  Collins,  75  Cal. 
411;  People  v.  Goldenson  76  Cal.  328;  People  v.  Gaunt, 
23  Cal.  156;  People  v.  Jenkins,  56  Cal.  5;  People  v.  Ley- 
shon,  108  Cal.  440. 

18  People  V.  Plyler,  121  Cal.  160;  People  v.  Dodge,  28  Cal. 
445;  People  v.  McCrory,  41  Cal.  458;  People  v.  Brown, 
46  Cal.  103. 

19  People  V.  Treadwell,  69  Cal.  227. 

20  People  V.   De  Lacey,  28  Cal.  590. 

21  People  V.  Mortimer,  46  Cal.  114. 

22  People  V.  Beam,  66  Cal.  394;  People  v.  Logan,  123  Cal. 
414. 

23  People  V.  Freeland,  6  Cal.  96;  People  v.  Breen,  130  Cal. 
72. 

24  People  V.  Symonds,  22  Cal.  349;  People  v.  Jocelyn,  29 
Cal.  564. 

25  People  V.  Travers,  88  Cal.  2.^?. 

26  People  V.  Holmes.  126  Cal.  462. 
2T  People  V.  Moice,  15  Cal.  330. 

28  People  V.  Young,  108  Cal.  8. 

29  People  V.  Diaz,  6  Cal.  248;  People  v.  Brown,  54  Cal.  243. 


324  CRIMINAL  LAW  AND  PROCEDURE. 

prosecution  is  not  required  to  admit  that  a  deposition  taken 
at  the  preliminary  examination  is  absolutely  true  before 
it  can  be  admitted.^^  The  error  is  not  cured,  in  the  court 
refusing  to  grant  a  continuance  on  the  ground  of  sickness 
of  witnesses,  by  the  fact  that  the  district  attorney  stated 
during  the  trial  that  the  witness  was  well,  and  the  counsel 
for  the  defendant  answered  that  he  was  too  ill  to  be  in 
court.^^ 

ABSENCE  OF  COUNSEL, 

The  absence  of  the  counsel,  on  account  of  sickness,  is 
sufficient  ground  upon  which  to  grant  a  continuance,'*  but 
where  the  continuance  is  asked  on  the  ground  of  the 
absence  of  a  counsel,  engaged  in  trying  another  case,  it 
must  be  shown  that  he  became  employed  therein  before 
the  criminal  case  had  been  set  for  trial.  And  in  case  of  his 
attendance  upon  the  state  legislature,  it  must  appear  that 
his  engagement  as  an  attorney  was  made  before  the  com- 
mencement of  the  session  of  legislature.^^  A  continuance 
upon  the  ground  of  intoxication  of  counsel  is  within  the 
discretion  of  the  court.  Counsel  cannot,  by  becoming 
intoxicated,  give  to  the  defendant  the  right  to  indefinite 
continuance.^* 

30  People  V.  Leyshon,  108  Cal.  440. 

31  People  V.  Plyler,  121  Cal.  160. 

32  People  V.  Logan,  4  Cal.  188. 

S3  People  V.  Goldenson,  76  Cal.  328. 
24  People  V.  Warren,  130  Cal.  678. 


CHAPTER  LVI. 


CHANQE  OK  VENUK. 


BIAS   OF   THE    PEOPLE. 

Where  there  exists  such  an  excitement  or  prejudice  in 
the  whole  county  upon  the  subject  as  would  preclude  the 
possibility  of  procuring  an  impartial  jury  without  diffi- 
culty, or  would  in  any  manner  interfere  with  the  impartial 
administration  of  the  laws,  and  this  fact  is  made  to  appear 
to  the  court  by  affidavits,  the  court  should  change  the 
venue.^  It  will  always  be  granted,  on  the  application  of 
the  defendant,  where  no  fair  and  impartial  trial  can  be  had 
in  the  county  where  the  action  is  pending,^  but  the  fact 
that  a  jury  cannot  be  selected  from  a  portion  of  the  county 
who  would  give  the  defendant  a  fair  trial  is  not  a  suffi- 
cient ground,^  nor  that  a  number  of  citizens  united  to 
employ  counsel  to  prosecute  the  defendant.* 

SUFFICIENCY   OF   THE   AFFIDAVITS. 

The  affidavit  of  the  accused  alone  that  he  cannot  have 
a  fair  trial  is  not  sufficient.^  The  affidavit  should  state 
the  facts  and  circumstances  from  which  the  conclusion 
that  a  fair  trial  cannot  be  had  is  deducible.®    The  court  is 

1  People  V.  Suesser,  132  Cal.  631;  People  v.  Yoakum, 
53  Cal.   566. 

2  Penal  Code  1033;  People  v.  Wong  Ark,  96  Cal.  137. 

3  People  V.  Baker.  1  Cal.  404. 

*  People  V.  Graham,  21  Cal.  265.  But  it  was  held  in  Peo- 
ple V.  Lee,  5  Cal.  3o3,  that  where  one  hundred  citizens 
united  in  employing  counsel  to  prosecute  the  defendant 
it  was  a  sufficient  showing,  in  the  absence  of  a,  counter- 
affidavit,  to  entitle  the  defendant  to  a  change  of  venue. 

5  People  V.  Graham,  21  Cal.  261. 

6  People  V.  Yoakum,  53  Cal.  566;  People  v.  McCauley,  1 
Cal.  379;  People  v.  Congleton,  44  Cal.  92. 


326  CRIMINAL  LAW  AND  PROCEDURE. 

not  ousted  of  jurisdiction  to  try  by  the  mere  filing  of  an 
affidavit  of  prejudice  and  bias/  for  counter-affidavits  may 
be  filed  by  the  people.*  Upon  the  application  for  a  change 
of  venue,  if  witnesses  are  desired  to  prove  the  allegations 
of  prejudice  and  bias,  the  application  for  a  subpoena  for 
such  witnesses  must  be  supported  by  affidavits.*  An  affi- 
davit on  information  and  belief  is  insufficient."  The 
granting  or  denial  of  the  application  rests  in  the  sound 
discretion  of  the  court,^^  and  is  reviewable  only  in  cases 
of  gross  abuse  of  discretion.^-  But  it  is  not  a  matter  of 
arbitrary  discretion.  The  discretion  must  be  warranted  by 
the  facts  disclosed  by  the  record. ^^  The  judge  must  find 
the  facts  as  to  the  bias  from  the  affidavits  and  showing 
made.^* 

APPLICATION    WHEN    MADE. 

The  application  for  a  change  of  venue  comes  too  late 
after  the  jury  is  obtained,^°  but  the  court  may  postpone 
the  motion,  until  the  impanelment  of  the  jury  is  attempted, 
for  the  purpose  of  determining  whether  or  not 
such  prejudice  really  exists.^*  When  a  motion  to 
change  the  venue  is  postponed,  by  the  court,  and 
the  court  afterwards  intimates  to  counsel  that  it 
may    be    renewed    and    the    counsel    declines    to    renew, 

7  Ex  parte  Wright,  119  Cal.  401. 

8  People  V.  Yoakum,  53  Cal.  566;  People  v.  Majors,  65  Cal. 
147;  People  v.  Goldenson,  76  Cal.  336;  People  v.  Vincent, 
95  Cal.  427;  People  v.  Fredericks,  106  Cal.  558. 

0  People  V.  Elliott,  80  Cal.  296. 

10  People  V.  Shuler,  28  Cal.  490. 

11  People  V.  Vincent,i  95  Cal.  425;  People  v.  Perdue,  49  Cal. 
425;  People  v.  Congleton,  44  Cal.  92;  People  v.  Yoakum, 
53  Cal.  567;  People  v.  Goldenson,  76  Cal.  339;  People  v. 
Elliott,  80  Cal.  298;   People  v.  Mahoney,  18  Cal.  181. 

12  People  V.  Fisher,  6  Cal.  154;  People  v.  Congleton,  44 
Cal.  95;  People  v.  Goldenson,  76  Cal.  339;  People  v. 
Elliott,  80  Cal.  298. 

13  People  V.  Yoakum,   53   Cal.   568. 

14  People  V.  Mahoney,  18  Cal.  188;  People  v.  Perdue,  49 
Cal.  427;  People  v.  Elliott,  80  Cal.  298;  People  v. 
Yoakum,  53  Cal.  568;   People  v.  Compton,  123  Cal.  403; 

'    Teople  V.   Rodley,   131   Cal.   240. 

15  People  V.  Cotta,   49    Cal.    166. 

16  People  V.  Plummer,  9  Cal.  299;  People  v.  Goldenson, 
76  Cal.  340;  People  v.  Fredericks,  106  Cal.  558. 


CHANGE  OF  VENUB.  327 

the  failure  of  the  court  to  change  the  venue  is  not  error,^^ 
and  the  motion  is  properly  denied  where  it  is  not  renewed 
after  leave  granted  to  renew.^*  The  failure  to  present  a 
motion,  at  the  time  to  which  the  hearing  of  it  was  con- 
tinued, waives  the  same.^® 

CHANGE    ON    APPLICATION    OF   THE    PEOPLE. 

The  defendant!  has  the  right  to  a  trial  by  -a  jury  selected 
from  the  county  where  the  crime  is  alleged  to  have  been 
committed,  and  any  statute  enacted  by  legislature  which 
authorizes  a  change  of  venue  to  be  made  upon  the  appli- 
cation of  the  people,  without  the  consent  of  the  defendant, 
is  unconstitutional  and  void.^° 

BIAS  OF  THE  JUDGE. 

A  change  of  venue  cannot  be  granted  on  the  ground  of 
the  disqualification  of  a  judge  to  try  the  cause,^^  a  change 
of  judges  may  be  had  for  that  reason.-^  The  bias  or 
prejudice  of  the  judge,  upon  an  application  for  a  change 
of  judges,  must  be  determined  by  affidavits  alone.  The 
judge  is  not  permitted  to  use  his  own  knowledge  of  the 
matter  and  where  no  counter  affidavits  are  filed  it  is  the 
duty  of  the  judge  to  grant  the  motion.^*     An  erroneous 

17  People  v.  Plummer,    9    Cal.    298. 

18  People  V.  Goldenson,   76   Cal.   328. 

19  People  V.  Fredericks,   106   Cal.    554. 

20  People  V.  Powell,  87  Cal.  348. 

21  People  V.  Shuler,  28  Cal.  490;  In  re  Jones.  103  Cal.  39S; 
People  V.  McGarvey,  56  Cal.  327;  Penal  Code  1033. 
Before  the  amendment  of  section  170  C.  C.  P.  in  1897 
to  allow  a  change  of  judges  for  such  cause,  it  was 
uniformly  held  that  bias  and  prejudice  of  the  judge 
did  not  disqualify  him  from  trying  a  case.  See  People 
V.  Mahoney.  18  Cal.  181;  People  v.  Williams,  24 
Cal.  35;  People  v.  Shuler,  28  Cal.  495;  In  re  Jones,  103 
Cal.   398;    In   re   Guerrero,   69   Cal.   102. 

22  Sec.  170  C.  C.  P.;  People  v.  Compton.  123  Cal.  123; 
People  V.  Rodley.  131  Cal.  240. 

23  People  V.  Compton,  123  Cal.  403;  People  v.  Rodley  131 
Cal.  240. 


838  CRIMINAL  LAW  AND  PROCEDURK. 

ruling  by  the  court  is  not  evidence  of  bias.^*  The  change 
of  judges  during  trial  is  an  irregular  proceeding.^"  but 
after  trial  another  judge  legally  presiding  may  pronounce 
sentence.*® 

24  People  V.  Williams,  24  Cal.  31. 
28  People  V.  Eckert,  16  Cal.  111. 
M  People  V.  Henderson,   28   Cal.   466. 


CHAPTER  LVII. 


THE   JURY. 


THE  SELECTION. 

There  is  no  distinction  to  be  observed  in  the  selection  of 
grand  and  petit  jurors,  but  the  names  of  all  jurors  selected 
are  to  be  placed  in  the  same  box ;  and  it  is  unnecessary  for 
the  court  in  making  its  order  designating  the  number  of 
grand  and  trial  jurors  required  for  the  ensuing  year,  to 
designate  the  separate  number  of  each  class  of  jurors 
required.^  The  object  of  the  statute  in  requiring  that  the 
clerk's  certificate  to  the  list  of  persons  drawn  for  jurors 
shall  state  the  date  of  the  order  directing  the  drawing,  is 
simply  to  identify  such  order ;  and  where  the  record  suffi- 
ciently identifies  the  order,  the  failure  of  the  clerk"  to  cer- 
tify, is  an  immaterial  error. ^  It  is  not  error  for  a  dis- 
qualified judge  to  draw  the  panel,  as  he  does  not  thereby 
sit  or  act  in  any  cause.^  The  order  directing  the  "drawing 
of  the  names  of  thirty-five  good  and  lawful  men"  to  be 
summoned  from  the  body  of  the  county,  is  a  proper  order.* 
The  order  designating  the  names  to  be  drawn  need  not  be 
signed  by  the  judge. ^  Any  immaterial  departure  from 
the  prescribed  forms  is  not  fatal,  if  the  defendant  has 
opportunity  to  secure  a  competent  and  impartial  jury." 
The  selection  of  the  jury,  by  the  board  of  supervisors,  need 
not  be  at  a  regular  or  special  meeting,  but  may  be  at  an 

1  People  V.  Crowey,  56  Cal.   36. 

2  People  V.  lams,    57    Cal.    115. 

3  People  V.  Ah  Lee  Doon,  97  Cal.   171. 

4  People  V.  Wheeler,    65   Cal.    77. 

5  People  V.  Baldwin,    117    Cal.    244. 

6  People  V.  Davis,    73    Cal.    355. 


330  CRIMINAL  LAW  AND  PROCEDURE. 

adjourned  meeting/  and  the  names  left  in  the  box  from  a 
list  of  qualified  jurors  issued  the  previous  year  may  be 
included  in  the  drawing  list  by  the  supervisors'.^  Where 
the  jurors  are  legally  drawn,  but  have  not  been  legally 
summoned,  additional  jurors  may  be  summoned.® 

THE  SUMMONING. 

Where  the  sheriff  and  coroner  are  both  disqualified  from 
summoning  a  jury  the  court  should  appoint  an  elisor." 
But  the  sheriff  is  not  disqualified  by  reason  of  believing  that 
the  defendant  committed  the  homicide,  if  he  had  no  opinion 
as  to  the  justification  under  which  it  was  done.  The  same 
qualification  applies  to  the  sheriff  in  summoning  the  jury 
as  it  does  to  a  juror  who  is  to  try  the  defendant;  and,  if 
the  sheriff  is  qualified  as  a  juror,  he  is  qualified  to  summon 
the  jury.^^  The  court  should  require  a  showing  that  the 
sheriflf  is  disqualified  before  making  an  appointment  of  an 
elisor.^"  It  must  appear  that  not  only  the  sheriff,  but  the 
coroner  of  a  county  is  also  disqualified.^^  But  where  they 
are  both  disqualified,  the  elisor  ought  to  be  appointed," 
and  the  court  should  follow  the  statutes  as  closely  as  pos- 
sible in  making  the  appointment.^^  The  word  "elisor"  has 
a  peculiar  and  appropriate  meaning  in  law,  and  denotes 
a  person  appointed  to  serve  process  or  return  a  jury  when 
the  sheriff  and  coroner  have  been  challenged  as  incom- 
petent.^** The  return  of  the  sheriff  upon  the  venire  is  no 
part  of  the  judgment  roll,  unless  incorporated  in  a  bill  of 
exceptions.^^ 

1  People  V.  Baldwin,   117  Cal.   244. 
8  People  V.  Rodley,    131    Cal.    240. 

3  People  V.  Devine,  46  Cal.  46;  People  v.  Sehorn,  116  Cal. 
509. 

10  People  V.  Sehorn,   116   Cal.   503. 

11  People  V.  Ryan,    108    Cal.    581. 

12  People  V.  Irwin,   77   Cal.   494. 

13  People  V.  Young,  108  Cal.  8;  People  v.  Sehorn,  116  Cal. 
509;  People  v.  Fellows,  122  Cal.  238;  Bruner  v.  Superior 
Court,  92  Cal.  239;   People  v.  Ebanks,  117  Cal.  652. 

i<  People  V.  Ebanks,  117  Cal.  652;  People  v.  Fellows,  122 
Cal.   238.  * 

15  People  V.  Irwin,  77  Cal.  499;  People  v.  Yeaton,  75  Cal. 
415. 

16  Bruner  v.  Superior    Court,    92    Cal.    239. 

17  People  V.  O'Brien,  88  Cal.  483. 


THE    JURY.  331 

THE    RIGHT    OF    CHALLENGE. 

The  defendant  has  the  right  to  challenge  for  cause,  and 
peremptorily;  and  the  failure  of  the  court  to  instruct  the 
defendant  of  such  right  is  reversible  error,  if  prejudical 
to  him/^  but  where  he  is  represented  by  counsel,  a  failure 
to  inform  him  of  such  right  is  not  error.^®  Where,  how- 
ever, he  has  no  counsel,  it  is.^"  Defendants  jointly 
indicted  have  a  right  to  separate  trials,  but  when  tried 
together,  they  must  join  in  the  challenge  to  a  juror.-^  An 
improper  allowance  of  a  challenge  of  the  people  will  defeat 
the  verdict. -- 

THE    CHALLENGE   TO  THE   PANEL. 

Objections  to  the  panel  must  be  made  before  the  jury 
is  sworn.-^  They  cannot  be  made  after  verdict,^*  and  must 
be  taken  only  on  statutory  grounds.  A  challenge  to  the 
panel  may  be  founded  only  on  a  material  departure  from 
the  forms  prescribed  in  respect  to  the  drawing  and  return- 
ing of  the  jury,  or  on  the  intentional  omission  of  the  sheriff 
to  summon  one  or  more  of  the  jurors  drawn. -^  Thus  it 
cannot  be  based  on  the  objection  that  some  of  the  jurors 
were  also  on  a  former  special  venire,  dismissed  on  the 
ground  of  bias  and  prejudice  of  the  summoning  officer,*' 
or  upon  objections  which  merely  go  to  the  mode  of  service 
of  the  venire,-^  or  upon  the  ground  of  non-residence  of  some 
of  the  jurors,^*  or  that  some  are  not  qualified,'"  or  because  no 
jury   has  been   drawn  after  the  court    has    directed    one 

18  People  V.  O'Brien,  88  CaL  483;  People  v.  Moore,  103 
Cal.    511. 

19  People  V.  Ellsworth,    92    Cal.    594. 

20  People  V.  Moore,    103   Cal.    508. 

21  People  V.  McCalla,   8    Cal.    301. 

22  People  V.  Stewart,    7    Cal.    141. 

23  People  V.  Oliveria,  127  Cal.  376;  People  v.  Durrant,  11& 
Cal.   195. 

24  People  V.  Ah  Lee  Doon,  97  Cal.  171. 

25  People  V.  Welch,  49  Cal.  174;  Bruner  v.  Superior  Court, 
92  Cal.  253;  People  v.  Wallace,  101  Cal.  283;  Levj'  v. 
Wilson,  69  Cal.  111. 

26  People  V.  Vincent,  95  Cal.  425;  People  v.  Durrant,  115 
Cal.    195;    People    v.    Sehorn,    116    Cal.    509 

2T  People  V.  M'Kay,   122  Cal.   628. 
28  People  V.  Wallace,    101   Cal.    281. 
20  People  V.  Durrant,    116    Cal.    179. 


382  CRIMINAL  LAW  AND    PROCEDURE. 

•drawn,'*'  It  cannot  be  allowed  where  the  court  has  ordered 
the  selection  of  a  jury  specially,''^  except  on  the  ground  of 
the  bias  of  the  officer  who  summoned  them.'^  That  the 
names  of  some  of  the  jurors  were  not  on  the  assessment 
roll,*'or  that  some  were  non-residents  of  the  county  ,'*or  that 
the  appointment  of  an  elisor  was  irregular,  is  not  ground 
of  challenge  to  a  special  venire,  but  such  objections  may 
be  reviewed  on  appeal  as  an  alleged  error  at  law  occuring 
during  the  trial. '''*  Where  the  challenge  is  made  on  account 
of  the  bias  of  the  officer  summoning  the  jury,  the  bias  of 
the  officer  must  be  upon  a  ground  which  would  be  good 
cause  for  a  challenge  against  the  juror.  The  test  of  the' 
sheriff's  qualification  is  whether  he  would  be  qualified  to 
sit  as  a  juror.'®  The  denial  of  the  challenge  on  the  ground 
of  disqualification  of  the  sheriff  will  not  be  reviewed  on 
appeal  where  the  evidence  of  the  mental  condition  of  the 
officer  is  conflicting.'^  If  the  court  has  any  doubt  as  to  the 
identity  of  the  uncertified  list  it  should  sustain  the  chal- 
lenge to  the  panel.'®  The  challenge  to  the  panel  should 
be  tried  by  oral  examination  of  witnesses  in  court,  and 
cannot  be  heard  upon  affidavits.'®  The  discharge  of  the 
panel  is  not  reversible  error  where  the  defendant  is  not  pre- 
judiced.*" 

IMP.\NELING    THE    JURY. 

In  impaneling  a  jury  twelve  names  must  be  drawn  from 
the  box,  and  the  defendant  must  be  allowed  to  examine  the 
whole   twelve   before   exercising   his    right   of  peremptory 

30  People  V.  Davis,  47  Cal.   93;   People  v.   Sehorn,  116  Cal. 
509. 

31  People  V.   Vance,    21    Cal.   401;    People  v.   Williams,   43 
Cal.    349. 

32  People  V.  Wallace,   101   Cal.   281. 

33  People  V.  Searcey,  121  Cal.  1;   People  v.  Young,  108  Tal. 
8;    People  v.  Durrani,   116  Cal.   194. 

34  People  V.  Wallace,    101    Cal.    281. 

35  People  V.  Fellows,    122    Cal.    233;    People    v.    Welch,    49 
Cal.  174. 

36  People  V.  Coyodo,    40    Cal.    586. 

37  People  V.  Hartman,    130    Cal.    487. 

38  People  V.  Young,   108   Cal.   8. 

39  People  V.  Brown,    48    Cal.    253;     People  v.  Durrant,    116 
Cal.   199. 

4«  People  V.  Murray,    85    Cal.    350. 


THE    JURY.  383 

challenge  as  to  any,*^  or  his  right  to  challenge  for  cause. 
If  any  be  accepted  they  must  then  be  sworn,  and  a  suffi- 
cient number  drawn  to  complete  the  jury,  and  the  same 
process  repeated  until  the  jury  is  completed.*^  But  the 
names  of  all  the  jurors  from  which  the  jury  is  to  be  drawn 
must  be  in  the  box.*^  The  court  is  not  permitted  to  place 
a  part  of  the  panel  in  the  box  and  draw  the  jury  therefrom. 
If  not  a  part  of  the  regular  panel,  the  court  has  no  authority 
to  order  jurors  serving  in  another  department  of  the  court 
to  be  brought  in  to  try  a  cause,  nor  can  they  be  included 
in  a  special  venire**  The  failure  of  one  of  the  veniremen 
to  respond,  is  not  ground  for  delay  if  there  are  enough 
present  without  him.*^  Jurors  may  be  sworn  individually 
before  the  panel  is  completed.*^  Objection  to  the  impanel- 
ment  is  waived  by  a  failure  to  make  it  at  the  time.*^  A 
juror  on  a  special  venire  does  not  cease  to  be  on  the  panel 
by  a  failure  to  respond.*^  A  special  panel  may  be  ordered 
although  the  special  list  is  not  exhausted.*"  Where  there 
is  no  regular  panel,  the  court  may  order  a  sufficient  number 
of  persons  for  a  trial  jury.^" 

PEREMPTORY  CHALLENGES. 

One  of  the  chief  safeguards  against  an  unjust  convic- 
tion is  the  right  of  the  defendant  to  peremptorily  challenge 
the  jurors,  and  the  courts  should  permit  the  freest  exercise 
of  this  right.^^  In  cases  where  the  penalty  is  less  than 
life  imprisonment,  the  defendant  is  entitled  to  ten  chal- 

41  People  V.  Riley,   65   Cal.   107. 

42  People  V.  Scoggins,  37  Cal.  676;  People  v.  Russell,  46 
Cal.  122;  People  v.  Hickman,  113  Cal.  84;  People  v. 
lams,   57   Cal.   115. 

43  People  V.  Edwards,   101   Cal.   543. 

44  People  V.  Compton,    132    Cal.    484. 

45  People  V.  Collins,   105   Cal.   504. 

46  People  V.  Reynolds,   16   Cal.   129. 

47  People  V.  Johnson,    104    Cal.    418. 

48  People  V.  Collins,   105   Cal.   504. 

40  People  V.  Durrani,  116  Cal.  179;  People  v.  Sehorn,  116 
Cal.    509. 

50  People  V.  Stuart,  4  Cal.  218;  People  v.  Vance,  21  CaL 
403;   People  v.  Williams,  43  Cal.  349. 

51  People  V.  Edwards,    101   Cal.   543. 


33^  CRIMINAL  LAW  AND  PROCEDURE. 

lenges;"'^  he  is  entitled  to  twenty  in  other  cases.°^  Where 
the  trial  is  of  a  prior  offense  and  robbery,"*  or  the  only 
sentence  that  may  be  imposed  is  life  imprisonment,  he  is 
entitled  to  twenty.°°  In  robbery,'**'  and  rape,°^  he  is  entitled 
to  ten  only.°*  The  defendant  must  have  exhausted  all  of 
his  peremptory  challenges  before  he  can  complain  of  the 
ruling  of  the  court  upon  a  challenge  for  cause."® 

WHEN  TAKEN. 

It  may  be  made  at  any  time  after  the  name  of  a  juror 
is  drawn,®"  or  after  all  are  accepted,  but  before  being 
sworn."^  The  defendant  should  exercise  his  right  before 
the  procurement  of  a  full  panel  as  fast  as  the  jurors  are 
passed  for  cause."^  If  the  prosecution  pass  the  jury  to  the 
defeVidant,  who  declines  to  challenge,  the  prosecution  may 
then  challenge  a  juror  peremptorily  before  he  is  sworn.®' 
A  peremptory  challenge  after  a  juror  is  sworn  is  not  a 
matter  of  right.*'*    It  is  within  the  discretion  of  the  court,®" 

62  People  V.  Clough,    59    Cal.    438. 

88  People  V.  Riley,   65   Cal.   109;    People  v.   Fultz,  109   Cal. 

259;    People  v.   Etting,   99   Cal.   578. 
54  People  V.  Harris,  61  Cal.   136. 
88  People  V.  O'Neil,  61  Cal.   435. 

86  People  V.  Riley,    65    Cal.    107. 

87  People  V.  Fultz,    109    Cal.    258. 

88  But  the  court  said  in  People  v.  Fultz,  that  they  fol- 
lowed the  Riley  case,  and  allowed  only  ten  challenges 
in  rape  cases  merely  on  the  ground  of  stare  decisis. 
People  V.  Logan.  123  Cal.  415;  People  v.  Clough,  59 
Cal.  438;  People  v.  Riley,  65  Cal.  107;  People  v.  Fultz, 
109  Cal.  259. 

89  People  V.  Gatewood,  20  Cal.  147;  People  v.  Gaunt,  23 
Cal.  158;  People  v.  Durrant,  116  Cal.  196;  People  v, 
McGungill,  41  Cal.  429;  People  v.  Well,  40  Cal.  268; 
People  V.  Winthrop,  118  Cal.  88. 

«o  People  V.  Ah    You,    47    Cal.    121. 

61  People  V.  Kohle,    4   Cal.    199. 

62  People  V.  Russell,  46  Cal.  121;  People  v.  lams,  57  Cal. 
125;  People  v.  Scoggins,  37  Cal.  676;  People  v.  Riley, 
65  Cal.   108;    People  v.   Dinsmore,  102  Cal.  382. 

63  People  V.  McCarty,  48  Cal.  557;  People  v.  Majors,  65 
Cal.  148;  People  v.  Dolan,  96  Cal.  319. 

64  People  V.  Reynolds,  16  Cal.  129;  People  v.  Durrant, 
116  Cal.  198;    People  v.  Scoggins,  37  Cal.  690. 

68  People  V.  Ward,   105   Cal.   335. 


THE    JURY.  335 

and  may  be  allowed  for  good  cause  shown.^^  Where  a 
juror  is  excused  on  account  of  sickness,  the  defendant  is 
allowed  the  whole  number  of  his  peremptory  challenges  to 
any  new  juror  or  any  of  the  original  eleven." 

EXCUSING    FOR    CAUSE. 

The  court  has  a  broad  discretion  in  excusing  of  its  own 
motion  without  a  challenge.  The  defendant  has  no  absolute 
right  to  have  any  particular  juror  and  is  only  entitled  to 
a  lawful  jury."^  It  can  excuse  a  juror  after  the  jury  is 
impaneled  and  before  the  introduction  of  evidence  on 
account  of  illness,®"  but  excusing  a  juror  for  illness  is 
proper,  only  where  the  defendant  is  given  another  per- 
emptory challenge.""  The  court  is  not  bound  to  excuse 
a  juror  for  a  sickness  that  does  not  incapacitate  him.^^  The 
court  may  also  excuse  a  juror  who  does  not  understand 
the  English  language. '- 

EVIDENCE    UPON    A    CHALLENGE. 

If  the  juror  is  challenged  for  implied  bias  he  cannot  be 
asked  whether  he  believes  the  defendant  guilty  or  not 
guilty/  but  where  he  is  challenged  for  actual  bias  he  can 
be  asked  if  the  opinion  entertained  by  him  be  fa,vorabIe 
or  unfavorable  to  the  defendant.^    This  is  for  the  purpose 

66  People  V.  Rodriguez,  10  Cal.  51;  People  v.  Scoggins,  37 
Cal.  677;  People  v.  Russell,  46  Cal.  121;  People  v. 
Montgomery,  53  Cal.  576;  People  v.  Jenks,  24  Cal.  11; 
People  V.  Durrant,  116  Cal.  198;  People  v.  Bemmerly,  87 
Cal.  120;   People  v.  Reynolds,  16  Cal.  129. 

67  People  V.  Stewart,  64  Cal.  60;  People  v.  Brady,  72  Cal. 
492;    People  v.  Wong  Ark,  96  Cal.  128. 

68  People  V.  Lee,  17  Cal.  76;  People  v.  Arceo,  32  Cal.  40; 
People  V.  Manahan,  32  Cal.  72;  People  v.  Murray,  85 
Cal.  356;  People  v.  Collins,  105  Cal.  511;  People  v. 
Durrant,  116  Cal.  199;  People  v.  Hickman,  113  Cal.  80; 
People  V.   Searcey,   121   Cal.   1. 

60  People  V.  Van  Horn,  119  Cal.   324. 

70  People  V.  Brady,  72  Cal.  490;  People  v.  Wong  Ark,  96 
Cal.   128;    People  v.  Van   Horn,   119   Cal.   332. 

71  People  V.  Brown,    76    Cal.    573. 

72  People  V.  Arceo,  32  Cal.  40;  People  v.  Brown,  76  Cal.  573. 

1  People  V.  Hamilton,    62    Cal.    377. 

2  People  V.  Kunz,  73  Cal.  317;  People  v.  Brown,  72  Cal. 
390;  People  v.  Ward,  77  Cal.  114;  People  v.  Hamilton, 
62  Cal.  377;  People  v.  Car  Soy,  57  Cal.  102;  People  v. 
Backus,    5    Cal.    277. 


336  CRIMINAL  LAW  AND  PROCEDURE. 

of  discovering  facts  to  the  defendant  from  which  he  can 
determine  whether  he  will  make  a  peremptory  challenge  or 
not.*  The  defendant  may  put  questions  for  actual  bias 
without  first  challenging  for  cause."*  Errors  in  allowing 
evidence  on  voir  dire  is  cured  by  the  defendant  sub- 
sequently challenging  the  juror  peremptorily  and  the  court 
allowing  him  another  peremptory  challenge^,^  The  juror's 
answers  to  hypothetical  questions  do  not  disqualify  him." 
It  is  not  proper  to  ask  the  juror  how  many  murder  cases 
he  has  sat  on.''  Leading  questions  may  be  put  to  the  juror 
within  the  discretion  of  the  court.®  The  juror  may  be  asked 
if  he  believes  in  the  right  of  a  defendant  to  take  the  law 
into  his  own  hands,  and  if  he  answers  in  the  affirmative,  he 
is  disqualified."  Prejudice  in  law  has  no  degree,  the  law 
contemplates  that  the  mind  of  a  juror  shall  be  free  from 
bias  and  prejudice;  to  ascertain  which  resort  may  be  had  to 
his  declarations  to  others,  and  his  statements  under  oath. 
It  is  competent  to  ask  any  questions  calculated  to  elicit 
this ;  for  instance  he  may  be  asked  if  he  is  a  member  of  a 
secret  society  in  which  an  obligation  is  taken  not  to  give 
a  fair  trial  to  a  certain  class  of  persons.^"  When  evidence 
on  a  challenge  to  a  juror  presents  a  question  of  fact,  and 
not  of  law,  the  appellate  court  will  not  review  it.^^ 

ACTUAL    BIAS. 

Actual  bias  is  the  existence  of  that  state  of  mind  on  the 
part  of  the  juror  in  reference  to  the  case,  or  to  either  of 
the  parties,  which  will  prevent  him  from  acting  with  entire 
impartiality  and  without  prejudice  to  the  substantial  rights 

3  People  V.  Car  Soy,  57  Cal.  102;    People  v.  Han  Tin,  57 
CaL   142;    People  v.  Hamilton,  62  Cal.  382. 

4  People  V.  Backus,    5    Cal.    277;    People   v.    Hamilton,   62 
Cal.    381. 

5  People  V.  Freeman,   92  Cal.   359. 
8  People  V.  Copsey,  71  Cal.   548. 

1  People  V.  Brittan,   118   Cal.   409. 
8  People  V.  Ah  Lee  Doon,   97   Cal.   172. 
»  People  V.  Plyler,    126    Cal.   379;    People   v.    Car   Soy,    57 
Cal.  102;   People  v.  Hamilton,  62  Cal.  378. 

10  People  V.  Reyes,   5   Cal.    347. 

11  People  V.  Flannelly,   128   Cal.   83;    People   v.   Fredericks, 
106  Cal.  554. 


THE    JURY.  337 

of  either  party. ^^  It  is  a  question  of  fact."  Impressions 
of  guilt  or  innocence  do  not  disqualify;  there  must  be  a 
fixed  opinion,"  but  an  unqualified  opinion  which  requires 
proof  to  change  is  a  disqualification,'^  whether  for  or  against 
the  defendant,'"  and  notwithstanding  the  juror  asserts 
he  can  try  the  case  impartially,"  and  believes  it  is  not  an 
unqualified  opinion,  if  in  fact,  it  is.'^  A  juror  is  not  to  be  the 
judge  of  his  own  disqualification,  and  where  he  is  chal- 
lenged as  incompetent,  he  is  not  rendered  competent  by 
statement  that  he  will  try  the  case  fairly.*^  Notwith- 
standing the  fact  that  he  says  he  could  give  a  fair  trial  to 
the  defendant,  if  he  be  disqualified,  he  should  be  rejected.^" 
But  the  possession  of  an  unqualified  opinion  is  no  longer  a 
ground  for  a  challenge,^'  if  the  juror  has  no  feeling  of 
malice  or  ill  will  to  the  defendant.^^  If  it  is  founded  on 
newspaper  reports,  public  rumor,  or  common  notoriety  it 
does  not  disqualify  where  the  juror  declares  that  he  can 
and  will,  notwithstanding  such  an  opinion,  act  impartially 
and  fairly  upon  the  matters  submitted  to  him.^^  But  where 
a  juror  who  has  an  opinion  that  the  defendant  is  guilty, 
which  it  would  require  evidence  to  remove,  he  is  disqual- 
ified, no  matter  what  was  the  source  of  his  knowledge  of 
the  facts  of  the  case.  The  discretion  given  in  applying  the 
test  whether  newspaper  reports  preclude  the  impartiality  of 

12  People  V.  Wong   Ark,    96    Cal.    125;    Penal    Code    1073. 

13  People  V.  Wells,    100   Cal.   22. 

14  People  V.  Symonds,  22  Cal.  349;  People  v.  McCauley, 
1   Cal.   379;    People  v.   Brown,   59  Cal.   354. 

15  People  V.  Cottle,  6  Cal.  227;  People  v.  Gehr,  8  Cal. 
361;  People  v.  Edwards,  41  Cal.  643;  People  v.  Brother- 
ton,  43  Cal.  431;;  People  v.  Murphy,  45  Cal.  142;  People 
V.  Welch,  49  Cal.  184;    Penal  Code  1073. 

16  People  V.  Williams,  6  Cal.  207;  People  v.  Hamilton, 
62    Cal.    379. 

17  People  V.  Gehr,    8    Cal.    359. 

18  People  V.  Edwards,    41    Cal.    640. 

19  People  V.  Woods,    29    Cal.    636. 

20  People  V.  Weil,    40    Cal.    268. 

21  People  V.  Cochran,   61  Cal.  548. 

22  People  V.  Welch,   49  Cal.   174. 

23  People  V.  Owens,  123  Cal.  482;  People  v.  Durrant,  116 
Cal.  179;  People  v.  Wells,  100  Cal.  227;  People  v. 
Collins,  105  Cal.  511;  People  v.  Fredericks,  106  Cal. 
559;    People  v.   Irwin,   77  Cal.   495. 


CRIMES--22 


338  CRIMINAL  LAW  AND  PROCEDURE. 

^  juror,  is  not  intended  to  deprive  a  defendant  of  the  right 
to  be  tried  by  a  jury  which  is  in  fact  unprejudiced.^*  But 
an  impression  of  guilt,  that  will  require  evidence  to  remove, 
where  the  juror  is  not  conscious  of  any  prejudice,  does  not 
•disqualify.^"  Neither  does  a  hypothetical  opinion  qualified 
Xiport  the  truth  of  the  report  upon  which  it  is  based.^®  When 
there  is  no  evidence  to  support  the  finding  of  the  court, 
that  the  juror's  opinion  is  founded  upon  public  rumor,  etc.. 
it  will  be  reversed.-^  The  challenge  for  actual  bias  will  be 
allowed  when  the  juror,  in  addition  to  newspaper  reports, 
has  heard  facts  from  persons  he  had  known  for  years, 
who  said  they  were  true,  and  he  believed  them,  and  would 
commence  the  trial  with  an  unfavorable  opinion.-^  An 
opinion  on  the  insanity  defense  when  that  is  not  the  defense 
relied  upon  is  not  a  disqualification.-**  A  juror  who  declared 
before  the  trial  that  ''the  prisoner  should  be  taken  out  of 
jail  by  the  people  and  hanged,"  is  incompetent.^"  But 
accepting  a  juror,  knowing  him  to  be  disqualified,  estops 
the  person  from  afterwards  objecting  thereto.^^  Challenges 
must  be  based  upon  the  ground  specified  in  the  code,^*  and 
must  state  the  specific  ground  therefor.  A  general  chal- 
lenge is  not  good.^^  The  decision  of  the  court  upon  the 
challenge  for  actual  bias  is  final,^*  and  cannot  be  reviewed 

24  People  V.  Suesser,   132   CaL   631. 

25  People  V.  Mahoney,  18  Cal.  181;  People  v.  King,  27 
Cal.   512. 

26  People  V.  Williams,  17  Cal.  142;  People  v.  King,  27 
Cal.  512;  People  v.  Brown,  59  Cal.  354;  People  v.  Mc- 
Gungill,   41   Cal.   429. 

27  People  V.  Wells,  100  Cal.  227. 

28  People  V.  Miller,   125   Cal.  44. 

29  People  V.  Collins,    105    Cal.    505. 

30  People  V.  Plummer,   9   Cal.    299. 

31  People  V.  Stonecifer,  6  Cal.  406;  People  v.  Sanford,  43 
Cal.  32. 

32  People  y.  Darr.   61   Cal.   554. 

33  People  V.  Owens,  123  Cal.  482;  People  v.  Cochran,  61 
Cal.  548;  People  v.  Dick,  37  Cal.  277;  People  v.  Ren- 
frew. 41  Cal.  37;  People  v.  Reynolds.  16  Cal.  129;  Peo- 
ple V.  McGungill,  41  Cal.  429;  People  v.  Durrani.  116 
Cal.  196;  People  v.  Buckley.  49  Cal.  241;  People  v. 
Cotta,  49  Cal.  166;  People  v.  Walsh,  43  Cal.  447;  People 
V.  Hardin,  37  Cal.  259. 

84  People  V.  Vasquez,  49  Cal.  560;  People  v.  Taing,  53 
Cal.  603;  People  v.  Riley,  65  Cal.  108;  People  v.  Gold- 
enson,  76  Cal.  340;   People  v.  Bemmerly,  87  Cal.  120. 


THE    JURY.  339 

on  appeal,^*^  except  where  a  question  of  law  is  presented,^' 
as  where  exception  is  taken  to  the  admission  or  rejection 
of  testimony  upon  the  trial  of  the  challenge,^''  or  where 
there  is  an  entire  absence  of  evidence  to  support  the  finding 
of  the  court  that  the  opinion  is  based  on  rumor  or  common 
notoriety.^*  A  failure  to  deny  the  challenge  is  a  waiver 
of  any  exception  to  it.^"  Exemption  from  jury  duty  is  a 
personal  privilege  and  is  not  a  ground  for  challenge.*** 

IMPLIED    BIAS. 

A  challenge  for  implied  bias  may  be  taken  for  all  or  any 
of  the  following  causes,  and  for  no  other:  Consanguinity 
or  affinity  within  the  fourth  degree  to  the  person  alleged  to 
be  injured  by  the  offense  charged,  or  on  whose  complaint 
the  prosecution  was  instituted,  or  to  the  defendant ;  stand- 
ing in  the  relation  of  guardian  and  ward,  attorney  and 
client,  master  and  servant,  or  landlord  and  tenant,  or  being 
a  member  of  the  family  of  the  defendant,  or  of  the  person 
alleged  to  be  injured  by  the  offense  charged,  or  on  whose 
complaint  the  prosecution  was  instituted,  or  in  his  employ- 
ment on  wages ;  being  a  party  adverse  to  the  defendant  in  a 
civil  action,  or  having  complained  against  or  been  accused 
by  him  in  a  criminal  prosecution  ;*^  having  served  on  the 
grand  jury  which  found  the  indictment,  or  on  a  coroner's 
jury  which  inquired  into  the  death  of  a  person  whose  death 

35  People  V.  Bemmerly,  87  Cal.  117;  People  v.  Owens,  123 
Cal.  482;  People  v.  Ward,  77  Cal.  113;  People  v.  Col- 
son,  49  Cal.  679;  People  v.  Cochran,  61  Cal.  549;  Peo- 
ple V.  Murphy,  45  Cal.  137;  People  v.  Fredericks,  106 
Cal.  555;  People  v.  Talng,  53  Cal.  602;  People  v.  Cotta, 
49  Cal.  166;  People  v.  Vasquez,  49  Cal.  560;  People  v. 
Riley,  65  Cal.  108;  People  v.  Brotherton,  43  Cal.  530; 
People  V.  Goldenson,  76  Cal.  346;  People  v.  Atherton, 
51   Cal.   495;    People   v.   Diirrant,   116   Cal.    199. 

36  Penal  Code  1170;  People  v.  Scott,  123  Cal.  434;  People 
V.  Evans,  124  Cal.  206;  People  v.  Fredericks,  106  Cal. 
559;  People  v.  Collins,  105  Cal.  511;  People  v.  Owens, 
123  Cal.  482;    People  v.  Wells,  100  Cal.  227. 

37  People  V.  Boling,    83    Cal.    380. 

38  People  V.  Wells,    100    Cal.    227. 

39  People  V.  Cochran,  61  Cal.  548. 

40  People  V.  Owens,   123   Cal.   482. 

41  Penal  Code  1074. 


340  CRIMINAL  LAW  AND  PROCEDURE. 

is  the  subject  of  the  indictment  or  information  ;*-  having 
served  on  a  trial  jury  which  has  tried  another  person  for 
the  offense  charged;  having  been  one  of  a  jury  formerly 
sworn  to  Iry  the  same  charge,  and  whose  verdict  was  set 
aside,  or  which  was  discharged  without  a  verdict,  after 
the  case  was  submitted  to  it ;  having  served  as  a  juror  in  a 
civil  action  brought  against  the  defendant  for  the  act 
charged  as  an  offense;*^  or  if  the  offense  charged  be  pun- 
ishable with  death,  the  entertaining  of  such  conscientious 
opinions  as  would  preclude  his  finding  the  defendant 
guilty  ;**  although  the  punishment  need  not  necessarily  be 
deatii.'"^  But  mere  opposition  to  capital  punishment,  with- 
out conscientious  scruples  against  it,  is  not  a  disqualifica- 
tion.*' The  challenge  for  implied  bias  must  specify  the 
particular  ground  upon  which  it  is  based.*'' 

WHEN   MADE. 

The  disqualification  must  be  urged  at  the  time  of  the  trial. 
It  cannot  be  taken  advantage  of  for  the  first  time  on 
appeal,*^  or  after  verdict  rendered,*"  whether  the  grounds 
therefor  were  known  before  or  not.^°  Neither  can  it  be 
taken  advantage  of  for  the  first  time  on  motion  for  a  new 
trial  or  in  arrest  of  judgment,'^  nor  after  the  jury  is 
sworn.^^     To  pass  the  juror  is  a  waiver  of  right  to  challenge 

42  Penal  Code  1074;  People  v.  Ebanks,  117  Cal.  666;  Peo- 
ple V.  Sehorn,  116  Cal.  509;  People  v.  Young,  108  Cal. 
13. 

43  Penal  Code  1074. 

44  Penal  Code  1074;  People  v.  Ah  Chung,  54  Cal.  398; 
People  V.  Goldenson,  76  Cal.  346. 

4s  People  V.  Majors,    65   Cal.    148. 

46  People  V.  Stewart,  7  Cal.  141;  People  v.  Gehr,  8  Cal. 
361;   People  v.  Murphy,  45  Cal.  143. 

47  People  V.  Cotta,  49  Cal.  166;  People  v.  Welch,  49  Cal. 
178;   People  v.  Cochran,  61  Cal.  548. 

48  People  V.  Evans,  124  Cal.  207;  People  v.  Chung  Lit,  17 
Cal.  321;   People  v.  Morcimer,  58  Cal.  267. 

49  People  V.  Fair,  43  Cal.  137;  People  v.  Mortimer,  46  Cal. 
120;    People  v.   Samsels,   66  Cal.  100. 

50  People  V.  Chung  Lit,  17  Cal.  321;  People  v.  Coffman, 
24  Cal.  234;  People  v.  Henderson,  28  Cal.  469;  People 
V.  Mortimer,  58  Cal.  267;   People  v.  Sanfofd,  43  Cal.  29. 

81  People  V.  Samsels,   66   Cal.   99. 

82  People  V.  Goldenson,    76    Cal.    328. 


THE    JURY.  341 

for  cause,^^  but  the  court  may  in  its  discretion  permit  the 
juror  to  be  challenged  after  he  is  sworn.°* 

ADMONISHING   THE    JURY. 

The  court  must  at  each  adjournment  of  the  court, 
whether  the  jury  is  permitted  to  separate  or  is  kept  in 
charge  of  the  officers,  admonish  the  jury  that  it  is  their  duty 
not  to  converse  among;  themselves,  or  with  any  one  else,  on 
any  subject  connected  with  the  trial,  or  to  form  or  express 
any  opinion  thereon  until  the  cause  is  finally  submitted  to 
them.''  The  court  cannot  be  too  strict  in  complying  with 
this  statute.  The  failure  to  do  so'  is  an  objectionable  prac- 
tice; yet  where  the  failure  occurs  prior  to  the  introduction 
of  evidence  it  is  not  of  sufficient  importance  to  demand  a 
reversal,'^  as  some  injury  must  be  shown  by  the  defend- 
ant." 

MISCONDUCT  OF  JURORS — DRINKING  LIQUORS. 

Suitable  food  for  the  jury  does  not  include  intoxicating 
liquors.'^  Treating  the  jurors  to  liquors  by  an  officer,'*  or 
drinking  liquor  by  a  juror,^°  without  the  permission  of  the 
court,  or  consent  of  the  accused,  is  improper,  and  will  war- 
rant a  reversal  of  the  verdict.*'^  But  where  the  drinking 
does  no  injustice  to  the  accused,  it  is  not  misconduct  suffi- 
cient to  warrant  a  reversal.®^  It  must  be  shown  that  the 
verdict  was  affected  by  the  drinking,"^  or  that  some  of  the 
jurors  were  intoxicated,®*  or  affected  during  the  delibera- 
tions.®'    If  a  juror  is  intoxicated  in  court  the  defendant 

53  People  V.  Stonecifer,    6    Cal.    405. 

54  People  V.  Owen,   123   Cal.    482. 

55  Penal  Code  1122. 

56  People  V.  Coyne,   116   Cal.    295. 

57  People  V.  Colmere,  23   Cal.   632. 

58  People  V.  Gray,    61    Cal.    164;    People    v.    Pratt,    78    CaL 
345;    People  v.   Azoff,   105  Cal.  632. 

69  People  V.  Myers,    70   Cal.    582. 

60  People  V.  Lee  Chuck,  78  Cal.  317;   People  v.  Deegan,  88 
Cal.  607;    People  v.  Leary,  105  Cal.  492. 

61  People  V.  Gray,   61   Cal.    164. 

62  People  V.  Leary,  105  Cal.  486;   People  v.  Van  Horn,  119 
Cal.   333. 

63  People  V.  Bemmerly,  98  Cal.  299. 

64  People  V.  Van    Horn,    119   Cal.    323. 
«s  People  V.  Deegan,  88  Cal.   602. 


342  CRIMINAL  LAW  AND  PROCEDURE. 

should  object  to  his  service  before  he  retires  to  deliberate," 
as  drinking  pending  submission,  when  the  juror  is  not 
affected  thereby,  is  not  misconduct.®^ 

READING   NEWSPAPERS. 

Reading  by  jurors  editorial  comments  on  the  trial,  which 
would  be  at  all  likely  to  influence  them  in  the  performance 
of  duty,  will  warrant  a  new  trial,**  and  evidence  is  inadmis- 
sible that  the  jurors  were  not  influenced  by  newspapers 
read.®°  Where  the  article  might  be  calculated  to  inju- 
riously affect  their  minds,  the  presumption  of  improper 
influence  arises  and  the  jury  will  not  be  permitted  to  testify 
that  they  were  not  influenced  thereby.^**  But  the  jurors 
may  testify  that  they  did  not  read  newspapers,  and  adhered 
to  the  admonition  of  the  court.^^  Their  affidavits  may  be 
used  also  to  explain  or  disprove  their  alleged  misconduct." 

SEPARATION    OF    THE    JURY. 

Where  the  jury  separates,  without  leave  of  the  court, 
whereby  they  might  have  been  improperly  influenced,  a  new 
trial  will  be  granted,'^^  but  a  momentary  separation  before 
submission  by  reason  of  the  fainting  of  a  witness,"*  or  a 
separation  after  the  jury  has  retired  to  answer  the  calls  of 
nature,  in  custodyj  of  the  sheriff,  when  no  communication  is 
had  with  any  one,'^  or  being  kept  securely  guarded  in  sepa- 
rate rooms  is  not  misconduct.'"  The  consent  of  the  defendant 
to  allow  the  jury  to  separate  is  not  a  waiver  of  objection 

66  People  V.  Sansome,    98    Cal.    240;    People    v.    Leary,    105 

Cal.  493. 
6T  People  V.  Sansome,    98    Cal.    240;    People   v.    Leary,    105 

Cal.  498;  People  v.  Van  Horn,  119  Cal.  333. 

68  People  V.  McCoy,  71  Cal.  395;   People  v.  Stokes,  103  Cal. 
199;   People  v.  Leary,  105  Cal.  490. 

69  People  V.  Stokes,  103  Cal.   193. 

70  People  V.  Leary,  105  Cal.  490;   People  v.  Azoff,  105  Cal. 
634;    People    v.    Conkllng,    111    Cal.    628. 

71  People  V.  Durrant,   116   Cal.   179. 
72 -People  V.  Azoff,  105  Cal.  632, 

73  People  V.  Backus,    5   Cal.   275;    People   v.   Thornton,   74 
Cal.  484;    People  v.  Bonney,  19  Cal.  444. 

74  People  V.  Lee,    17    Cal.    76. 

75  People  V.  Bonney,   19   Cal.   447. 

76  People  V.  Bush,  68  Cal.  635. 


tHE    JURY.  343 

thereto."  Separation  of  the  jury,  not  shown  to  be  preju- 
dicial, is  not  ground  for  a  new  trial/®  but  when  done  with- 
out permission  is  presumed  to  be  prejudicial.''"  A  separa- 
tion after  having  retired  to  deliberate  is  irregular,®"  but 
a  separation  before  the  jury  retires,  when  the  presump- 
tion of  improper  influence  is  overcome  by  an  affirmative 
showing  to  the  contrary,  is  not  error.®^ 

A  separation  during  trial  and  before  the  jury  retires  to 
deliberate  is  within  the  discretion  of  the  court,®^  but  it  is  the 
duty  of  the  court  to  admonish  the  jury  upon  such  a  separa- 
tion, and  this  duty  should  always  be  strictly  complied  with 
by  the  court.®^  It  is  not  misconduct  to  leave  the  jury  in  a 
room  accessible  to  strangers  in  the  absence  of  an  officer,®* 
nor  to  leave  it  in  the  charge  of  a  deputy  when  the  court 
ordered  it  in  charge  of  the  sheriff.®^ 

RECEIVING  EVIDENCE  OUT  OF  COURT. 

The  jury  has  no  right  to  receive  evidence  out  of  court.^ 
Making    experiments    out    of    court    with    powder    marks 

'7  People  V.  Hawley,  111  Cal.  78.  It  was  held  in  People 
V.  Kelly,  46  Cal.  356,  that  the  court,  with  the  consent 
of  the  defendant,  might  permit  the  jury  to  separate 
after  delivering  a  sealed  verdict  to  the  sheriif.  This 
seems  to  be  a  violation  of  section  1128  Penal  Code, 
which  provides  that  after  retiring  to  deliberate  upon 
their  verdict  the  jury  must  be  kept  together.  People 
V.  Tarm  Poi,  86  Cal.  230  seems  also  to  hold  that 
the  defendant  may  consent  to  a  separation. 

78  People  V.  Tarm  Poi,  86  Cal.  230;  People  v.  Hawley, 
111  Cal.  78;    People  v.  Wheatley,  88  Cal.  114. 

79  People  V.  Mitchell,  100  Cal.  328;  People  v.  Stokes,  103 
Cal.  193;   People  v.  Creegan,  121  Cal.  558. 

80  People  v.  Brannigan,  21  Cal.  339;  People  v.  Leary,  105 
Cal.  494;  People  v.  Thornton,  74  Cal.  484;  People  v. 
Symonds,  22  Cal.  352;  People  v.  Turner,  39  Cal.  375; 
People  v.  Lee  Chuck,  78  Cal.  334. 

81  People  V.  Symonds,  22  Cal.  349;  People  v.  Wheatley, 
88  Cal.  119;  People  v.  Leary,  105  Cal.  494;  People  v. 
Colmere,   23    Cal.    633;    People   v.    Hughes,    29    Cal.    262. 

82  People  V.  Ebanks,  117  Cal.  652;  People  v.  Chaves,  122 
Cal.  140. 

83  People  V.  Thompson,   84   Cal.   598. 

8'4  People  V.  Kelly,    46    Cal.    356;    People    v.    Thornton,    74 

Cal.   487. 
83  People  V.  Hughes,   29  Cal.  258. 
1  People  V.  Thornton,   74   Cal.   482;    Penal   Code   1181. 


344  CRIMINAL  LAW  AND  PROCEDURE. 

amounts  to  receiving  evidence,^  but  the  examination  of  the 
horns  of  a  stolen  cow,^  or  visiting  the  locus  in  quo  does  not.* 
Conversation  with  witnesses,  while  reprehensible,  is  not 
reversible  error,"^  nor  is  misconduct  shown  by  conversation 
of  jurors  with  other  persons,^  when  no  injustice  is  done  the 
accused  and  the  conversations  are  innnocent.''  A  mere  pass- 
ing remark  by  a  third  person  in  the  presence  of  the  jurors, 
although  detrimental  to  the  accused  and  meriting  punish- 
ment as  for  contempt,  is  not  misconduct  of  the  jury.* 

IMPEACHING  THE  VERDICT. 

A  juror  is  not  allowed  to  impeach  his  own  verdict,' 
except  where  the  jurors  resorted  to  chance  in  arriving  at 
it.^°  Neither  can  affidavits  of  others  as  to  statements  made 
by  a  juror  be  used  for  such  purpose.^^  This  is  upon  the 
ground  of  public  policy,  but  a  juror  may  be  a  witness,  how- 
•ever.^^  His  affidavit  may  be  used  to  support  the  verdict 
when  attacked  for  misconduct  of  the  jury,^^  and  is  conclu- 
sive upon  that  question ;"  or  it  may  be  used  to  disprove  or 
explain  any  alleged  misconduct,  but  not  to  show  that  the 
jurors    were    not    influenced    by    admitted    misconduct." 

2  People  V.  Conkling,    111    Cal.    61«. 

3  People  V.  Tipton,  73  Cal.  405. 
*  People  V.  Hope,   62   Cal.   291. 

5  People  V.  Dunne,  80  Cal.  34. 

6  People  V.  McCurdy,  68  Cal.  576. 

7  People  V.  Boggs,  20  Cal.  432;  People  v.  Symonds,  22 
Cal.  353.    . 

8  People  V.  Brannigan,  21  Cal.  338;  People  v.  Durrant, 
116    Cal.    179. 

9  People  V.  Deegan,  88  Cal.  602;  People  v.  Gray,  61  Cal. 
164;  People  v.  Baker,  1  Cal.  404;  People  v.  Azoff,  105 
Cal.  633;  People  v.  Pratt,  78  Cal.  345;  People  v.  Kloss, 
115  Cal.  567;  People  v.  Hughes,  29  Cal.  258;  People  v. 
Wyman.  15  Cal.  70;  People  v.  Holmes,  118  Cal.  444; 
People  V.  Sprague,  53  Cal.  491. 

10  People  V.  Soap,  127  Cal.  408;  People  v.  Azoff,  105  Cal. 
632. 

11  People  V.  Azoff,  105  Cal.  632;  People  v.  Kloss,  115  Cal. 
579. 

12  People  V.  Doyell,   48  Cal.   85. 

13  People  V.  Hunt,  59  Cal.  430;  People  v.  Goldenson,  76 
Cal.  352;  People  v.  Murray.  94  Cal.  217. 

1*  People  V.  Goldenson,  76  Cal.  328;  People  v.  Murray,  94 
Cal.  217;  People  v.  Dye,  62  Cal.  523;  People  v.  Hunt, 
59  Cal.  430. 

15  People  V.  Azoff.  105  Cal.  632. 


THE    JURY.  346 

Every  presumption  is  in  favor  of  the  regularity  of  the  pro- 
cedure, and  the  due  performance  by  the  jury  of  their  duty. 
Misconduct  must  be  affirmatively  shown^^  by  positive  and 
direct  testimony.^"  An  affidavit  on  information  and  belief 
is  not  sufficient.^^  Affidavits,  depositions  and  oral  testimony 
may  be  used  on  the  motion.^"  Where  it  is  sought  to  intro- 
duce newly  discovered  evidence  of  the  misconduct  of  the 
jury,  the  affidavits  must  show  what  the  evidence  is.^"  The 
court  may  determine,  in  its  discretion,  whether  the  matter 
will  be  tried  upon  affidavits  or  oral  testimony.-^  A  motion 
to  subpoena  jurors,  based  upon  affidavits,  is  addressed  to 
the  sound  discretion  of  the  court,  but  it  is  wise  fully  to 
investigate  the  matter.^^  Discussion  among  jurors  before 
submission  of  the  cause  is  not  reversible  error,  where  the 
defendant  is  not  prejudiced,^^  and  improper  conduct  of  the 
jurors  is  not  sufficient  to  set  aside  a  verdict,  if  it  appears 
the  defendant  was  not  prejudiced.-*  But  where  there  is  an 
admitted  irregularity,  the  successful  party  must  show  that  it 
did  not  influence  the  verdict,^^  as  clear  and  undisputed  proof 
of  misconduct  will  always  entitle  to  a  new  trial. ^^  If  the 
evidence  is  conflicting,  the  ruling  of  the  trial  court  will  not 
be  disturbed.-'^ 

16  People  V.  Kramer,  117  Cal.  647;  People  v.  Rodgers,  71 
Cal.  565. 

17  People  V.  Williams,  24  Cal.  31;  People  v.  Leary,  105 
Cal.  494;  People  v.  Kramer,  117  Cal.  650;  People  v. 
Rodgers,  71  Cal.  565. 

18  People  V.  Tarm  Poi,  86  Cal.  231. 

19  People  V.  Sullivan,  129  Cal.  557;  People  v.  Tucker,  117 
Cal.   229. 

20  People  V.  Winthrop,    118   Cal.    85. 

21  People  V.  Tucker,    117    Cal.    229. 

22  People  V.  Phelan,   123  Cal.  551. 

23  People  V.  West,  73  Cal.  345;  People  v.  Kramer,  117 
Cal.  649. 

24  People  V.  Dennis,  39  Cal.  625;  People  v.  Moore,  41  Cal. 
238;  People  v.  Leary,  105  Cal.  494. 

25  People  V.  Turner,  39  Cal.  370;  People  v.  Lee  Chuck,  78 
Cal.   334;    People  v.   Stokes,   103   Cal.   198. 

26  People  V.  Lee  Chuck,  78  Cal.  334. 

27  People  V.  Dye,  62  Cal.  523;  People  v.  Goldenson,  76 
Cal.  352;   People  v.  Murray,  94  Cal.  217. 


CHAPTER  LVIII. 


WITNBSSES. 


A  witness  is  a  person  whose  declaration  under  oath  is 
received  as  evidence  for  any  purpose,  whether  such  declara- 
tion be  made  on  oral  examination  or  by  deposition  or  affi- 
davit.^ 

COMPETENCY. 

The  competency  of  a  witness  must  be  strictly  construed 
in  favor  of  life,  liberty  and  public  justice.^  All  persons, 
with  the  exceptions  hereafter  named,  who  having  organs 
of  sense,  can  perceive  and,  perceiving,  can  make  known  their 
perceptions  to  others,  may  be  witnesses.  Therefore, 
neither  parties  nor  other  persons  who  have  an  interest  in  the 
event  of  an  action  or  proceeding  are  excluded ;  nor  those 
who  have  been  convicted  of  a  crime  f  nor  persons  on  account 
of  their  opinions  on  matters  of  religious  belief.*  The  law 
rejects  the  testimony  of  persons  of  unsound  mind  at  the 
time  of  their  production  for  examination,  and  children  under 
ten  years  of  age,  who  appear  incapable  of  receiving  just 
impressions  of  the  facts  respecting  which  they  are  exam- 
ined, or  of  relating  them  truly.°  Competency  of  children 
as  witnesses  is  not  determined  by  age  alone,  but  by  the  de- 
gree of  their  intelligence  and  understanding.  It  is  essen- 
tial that  they  possess  sufficient  intelligence  to  receive 
impressions  and  have  sufficient  capacity  to  relate  them  cor- 
rectly and  understand  the  nature  and  obligation  of  an  oath.' 

1  Sec.  1878  C.  C.  P. 

2  People  V.  Awa,  27  Cal.  638. 

3  Sec.  1879  C.  C.  P. 

*  Sec.  1879  C.  C.  P.;   People  v.  Copsey,  71  Cal.  548. 

5  Sec.   1880   C.   C.  P. 

6  People  V.  Bernal,    10    Cal.    67. 


WITNESSES.  347 

Their  competency  is  within  the  discretion  of  the  court,  and 
where  the  court  examines  as  to  competency  on  a  previous 
trial,  it  is  not  necessary  to  re-examineJ  It  is  to  be  deter- 
minded  upon  the  voir  dire  or  by  evidence  aliunde,  if  the 
party  objecting  adopt  the  former,  he  makes  the  witness  his, 
and  is  concluded  by  his  testimony,  unless  the  question  is 
still  in  doubt,  when  he  may  show  incompetency  by  others.* 
Except  with  the  consent  of  both,  or  in  cases  of  criminal 
violence  upon  one  by  the  other,  neither  husband  nor  wife 
is  a  competent  witness  for  or  against  the  other  in  a  criminal 
action  or  proceeding  to  which  one  or  both  are  parties.®  But 
the  disability  of  the  statute  applies  only  when  one  or  both 
are  parties  to  the  criminal  action,^*^  and  does  not  extend 
to  cases  where  the  parties  are  living  together  as  husband 
and  wife  without  the  existence  of  a  marriage  relation.^^ 

CREDIBILITY. 

A  witness  is  presumed  to  speak  the  truth.^^  This  pre- 
sumption, however,  may  be  repelled  by  the  manner  in  which 
he  testifies,^-''  by  the  character  of  his  testimony,  or  by  evi- 
dence affecting  his  character  for  truth,  honesty  or  integrity, 
or  his  motives,  or  by  contradictory  evidence.^*  The  credi- 
bility of  the  witness  may  be  thus  drawn  in  question,^''  but 
the  jury  are  the  exclusive  judges  of  his  credibility.^*  Where 
the  defendant  offers  himself  as  a  witness,  in  determining 
his  credibility,  it  is  proper  to  take  into  consideration  the 
consequences,  inducements  and  temptations  which  would 
ordinarily  influence  a  person  in  his  situation.^''     The  court 

7  People  V.   Baldwin,   117   Cal.   244;    People  v.   Welsh,   63 
Cal.  167;  People  v.  Craig,  111  Cal.  460. 

8  People  V.  Anderson,  26  Cal.   130. 

9  Penal    Code    1322. 

10  People  V.  Langtree,    64    Cal.    256. 

11  People  V.  Alviso,    55    Cal.    230. 

12  Sec.    1963,   subdivision   1,   C.  C.   P. 

13  Sec.   2061,   subdivision   2,    C.    C.    P. 

14  Sec.  1847  C.  C.  P. 

15  Sec.  1879  C.  C.  P. 

16  Sees.  1847  and  2061  C.  C.  P.;  People  v.  Hertz,  105  Cal. 
660;  People  v.  Shattuck,  109  Cal.  681;  People  v.  Wal- 
lace, 89  Cal.  158;    People  v.  Van  Ewan,  111  Cal,  151. 

17  People  V.  Morrow,  60  Cal.  147;  People  v.  Nichols,  62' 
Cal.  622;    People  v.  O'Neal,  67  Cal.  379;    People  v.  Mur- 


348  CRIMINAL  LAW  AND  PROCEDURE. 

should  allow  cross-examination  for  the  purpose  of  testing 
the  credibility  of  a  witness.^*  For  this  purpose  the  witness 
may  be  cross-examined  as  to  statements  made  to  others 
showing  animus;^"  as  to  his  interest,  bias,  prejudice,  ill 
feeling  or  hostility;^''  as  to  relationship  to  the  defendant," 
or  anything  which  tends  to  show  interest  or  feeling.^* 
Thus  the  fact  that  the  witness  expects  leniency  for  testi- 
fying,^' his  employment  of  special  counsel,-*  and  of  detec- 
tives, may  be  shown, -^  but  not  the  amount  paid,^' 
nor  the  employment  of  counsel  to  defend  himself  in  another 
criminal  action  in  which  the  defendant  was  prosecuting 
witness."  Bias  may  be  shown  on  cross-examination  by 
proving  that  while  the  witness  informed  the  prosecution  of 
his  knowledge,  he  refused  to  inform  the  defendant,'^*  but 
not  by  asking  him  if  he  and  defendant  were  not  imprisoned 
together.^®  The  immoral  conduct  of  the  defendant,  when 
unconnected  with  the  charge,  is  immaterial;'"  while  the 
common  experience  of  mankind  is  that  there  is  rarely 
found  united  in  the  character  of  prostitutes  any  regard  for 

ray,  86  Cal.  35;  People  v.  Lang,  104  Cal.  368;  People 
V.  Cronin,  34  Cal.  191;  People  v.  Faulke,  96  Cal.  20; 
People  V.  Newcomer,  118  Cal.  268;  People  v.  Fehren- 
bach,  102  Cal.  394;  People  v.  Hitchcock,  104  Cal.  486; 
People  V.  Van  Ewan,  111  Cal.  149;  People  v.  Ellen- 
wood,  119  Cal.   171. 

18  People  V.  Bullard,    51    Cal.    551. 

19  People  V.  French,  69  Cal.  169;  People  v.  Murray,  85 
Cal.  350;  People  v.  Wong  Chuey,  117  Cal.  628. 

20  People  V.  Wong  Chuey,  117  Cal.  624;  People  v.  Lee 
Ah  Chuck,  66  Cal.  662;  People  v.  Ward,  105  Cal.  652; 
People  V.  Wasson,  65  Cal.  538;  People  v.  Bird,  124  Cal. 
32;    People  v.  Anderson,  105  Cal.  33. 

21  People  V.  Bush,  71  Cal.  602;  People  v.  Wong  Ah  Foo, 
69  Cal.  180. 

22  People  V.  Gregory,  120  Cal.  16;  People  v.  Thomson,  92 
Cal.  506;  People  v.  Glllis,  97  Cal.  544;  People  v.  Wong 
Chuey,  117  Cal.  627. 

23  People  V.  Langtree,   64   Cal.   256. 

24  People  V.  Blackwell,  27  Cal.  65;  People  v.  Lee  Ah 
Chuck,  66  Cal.  662;  People  v.  Gillis,  97  Cal.  544. 

25  People  V.  Breen,  130  Cal.  72. 

26  People  V.  Breen,   130   Cal.   72. 

27  People  V.  Ryan,  108  Cal.  581. 

28  People  V.  Shaw,  111   Cal.   171. 

29  People  V.  Lynch,  122  Cal.  501;  People  v.  Kuches,  120 
Cal.    566. 

30  People  V.  Tiley,  84  Cal.  651;  People  v.  Wallace,  89  Cal. 
162. 


WITNESSES.  349 

truth,  their  testimony  is  not  to  be  disregarded  on  that 
account. ^^  Where  the  witness'  own  testimony  shows  she 
is  a  prostitute,  it  is  proper  to  refuse  permission  to  prove 
that  she  is  such.^^  Eavesdropping  does  not  discredit  a  wit- 
ness, though  an  offense  at  common  law.^^  Neither  does 
the  conviction  of  a  misdemeanor,^*  nor  proof  that  he  was 
confined  in  jail.^^  The  fact  that  the  prosecuting  attorney 
is  a  witness  is  sufficient  to  show  bias  and  prejudice  against 
the  defendant.^" 

IMPEACHMENT. 

A  witness  may  be  impeached  by  the  party  against  whom 
he  was  called,  by  contradictory  evidence,  or  by  evidence 
that  his  general  reputation  for  truth,  honesty  and  integrity 
is  bad,  but  not  by  evidence  of  particular  wrongful  acts, 
except  that  it  may  be  shown  by  the  examination  of  the  wit- 
ness, or  the  record  of  the  judgment,  that  he  has  been  con- 
victed of  a  felony.^'^  The  court  may  put  a  reasonable  limit 
on  the  number  of  witnesses  to  be  called  for  purposes  of 
impeachment.^^  A  person  convicted  of  a  felony  is  not  enti- 
tled to  full  credit  as  a  witness,^^  and  the  evidence  of  an 
impeached  witness  may  be  disregarded.*" 

CONVICTION   OF  A   FELONY. 

The  judgment  against  the  witness  of  a  prior  conviction 
of  a  felony  may  be  introduced,  or  he  may  be  asked  if  he  has 
not  been  so  convicted,  for  the  purpose  of  impeachment  ;*^ 
but  it  is  not  permissible  to  ask  the  witness  the  nature  of  the 
felony.**'     The  defendant,  if  a  witness,  may  also  be  asked 

31  People  V.  Ross,  115  Cal.  233. 

32  People  V.  Reed,  48  Cal.  553;   People  v.  Westlake,  62  Cal. 
310. 

33  People  V.  Cotta,    49    Cal.    166. 

34  People  V.  Griner,  124  Cal.  19. 

35  People  V.  Ah  Who,  49  Cal.  32;   People  v.  Sllva,  121  Cal. 
668. 

30  People  V.  Hamberg,  84  Cal.  468. 

37  Sec.   2051  C.   C.  P. 

38  People  V.  Murray,    41    Cal.    66. 

39  People  V.  McLane,  60  Cal.  412. 

40  People  V.  Phillips,    70    Cal.    61. 

41  People  V.  Sears,    119    Cal.    267. 

42  People  V.  Putman,   129   Cal.   258;    People  v.   Chin  Hane, 
108   Cal.   607. 


350  CRIMINAL  LAW  AND  PROCEDURE. 

if  he  has  been  convicted  of  a  felony,  but  the  question  goes 
only  to  his  credibility.'*''  The  verdict  of  the  jury  is  a 
conviction,  even  though  a  judgment  has  not  been  entered.** 
A  pardon,  however,  removes  all  disability  which  follows 
the  conviction  of  a  felony ;  but  an  executive  act  restoring 
to  the  rights  of  citizenship  is  not  a  pardon,  and  does  not 
remove  the  legal  infamy.*^  A  witness  cannot  be  impeached  for 
want  of  religious  belief.*"  Where  it  has  been  known  that  a 
witness  was  arrested  for  a  crime,  he  may  show  the  subse- 
quent disposal  of  the  case.*^  If  one  party  shows  that  a  wit- 
ness was  convicted  of  a  felony,  the  other  may  show  good 
character  for  truth  and  integrity.**  But  evidence  of  a  par- 
ticular wrongful  act  cannot  be  used  to  impeach.**  As,  for 
instance,  it  cannot  be  shown  that  the  witness  has  been  con- 
victed of  a  misdemeanor,  unless  the  record  of  the  convic- 
tion shows  moral  turpitude  or  infamy ,^^  nor  that  he  has 
been  guilty  of  immoral  conduct,"^  or  of  living  with  a  woman 
not  his  wife.°^ 

GENERAL  REPUTATION. 

A  witness  may  be  impeached  on  the  ground  that  his  gen- 

43  People  V.  Johnson,  57  Cal.  571;  People  v.  Crowley,  100 
Cal.  482.  It  was  formerly  held  in  People  v.  Reinhart, 
39  Cal.  449,  that  a  witness  could  not  be  examined  as  to 
a  conviction  of  a  felony,  for  the  reason  that  the  rec- 
ord is  the  best  evidence.  See  also  People  v.  Melvane, 
39  Cal.  617;  People  v.  McDonald,  39  Cal.  698;  People 
V.  Schenick,  65  Cal.  626,  but  such  is  no  longer  the  rule. 
People  V.  Crowley,  100  Cal.  481;  People  v.  Sears,  119 
Cal.  267. 

**  People  v.  Ward,  decided  Oct.  13,  1901. 

45  People  V.  Bowen,   43   Cal.   439. 

46  People  V.  Copsey,   71   Cal.   548. 

47  People  V.  Chin   Hane,   108  Cal.   597. 

48  People  V.  Amanacus,    50   Cal.   233. 

4»  People  V.  Chin  Hane,  108  Cal.  597;    People  v.  Hamolin, 

68   Cal.   101;    People  v.   O'Brien,   96   Cal.   180;    People  v. 

Un    Dong,    106    Cal.    88;    People    v.    Arrighini,    122    Cal. 

121;   People  v.  Silva,  121  Cal.  668;   People  v.  Mayes,  113 

Cal.  618. 
60  People  V.  Carolan,  71  Cal.  195. 
51  People  V.  Crandall,    125    Cal.    129;    People   v.    Silva,    121 

Cal.   668;    Sharon  v.  Sharon,  79  Cal.   673;    People  v.   Un 

Dong,  106  Cal.  88;    People  v.  Wells,  100  Cal.  462. 
82  People  V.  Clarke,   130  Cal.   642;    People  v.   Crandall,   125 

Cal.  135. 


WITNESSES.  351 

eral  reputation  for  truth,  honesty  and  integrity  is  bad."^ 
The  impeaching  evidence  is  not  restricted  to  the  personal 
knowledge  of  the  witness  as  to  his  reputation,'**  and  per- 
sonal knowledge  of  his  veracity  is  not  sufficient;  it  must 
be  general  knowledge.^^  Neither  is  evidence  of  bad  charac- 
ter admissible.  The  question  is  limited  to  general  reputa- 
tion for  truth,  honesty  and  integrity ;  it  cannot  be  restricted 
to  truth  and  veracity/*'  It  is  not  necessary  to  show  that 
the  witness  would  not  believe  him  under  oath,^^  and  such  a 
question  is  improper. °^  The  impeaching  evidence  may  be 
rebutted  by  a  showing  of  good  character  for  truth  and 
veracity,''^  but  it  is  not  admissible  until  good  character  is 
attacked. ""^  The  defendant  may  be  impeached  the  same  as 
any  other   witness  by  general  reputation.**^ 

CONTRADICTORY  STATEMENTS. 

A  witness  may  also  be  impeached  by  evidence  that  he  has 
made  at  other  times,  statements  inconsistent  with  his  pres- 
ent testimony  f'^  but  before  this  can  be  done  the  statements 
must  be  related  to  him,  with  the'  circumstances  of  the  times, 
places  and  persons  present,  and  he  must  be  asked  whether 
he  made  such  statements,  and  if  so,  allowed  to  explain 
them.*^*'     And  the  question  should  use  the  particular  words 

53  People  V.  Markham,  64  Cal.  157;  People  v.  Webster,  89 
Cal.  573;  People  v.  Hickman,  113  Cal.  80;  People  v. 
Silva,  121  Cal.  669;  People  v.  Prather,  120  Cal.  666; 
People  V.  Bentley,  77  Cal.  7. 

54  People  V.  Webster,    89    Cal.    572. 

55  People  V.  Methvin,  53  Cal.  68;  People  v.  Webster,  89 
Cal.  574;   People  v.  Ramirez,  56  Cal.  538. 

PC  People  V.  Silva,  121  Cal.  668;  People  v.  Hickman,  113 
Cal.  86;   People  v.  Yslas,  27  Cal.  631. 

57  People  V.  Tyler,  35  Cal.  553;  People  v.  Methvin,  53  Cal. 
68. 

58  People  V.  Ramirez,    56   Cal.   533. 

59  People  V.  Ah   Fat,    48   Cal.    61. 

00  People  V.  Bush,  65  Cal.  129;  People  v.  Cowgill,  93  Cal. 
596. 

01  People  v.  Hickman,  113  Cal.  80;  People  v.  Mayes,  113 
Cal.  624;  People  v.  Arnold,  116  Cal.  687;  People  v. 
Prather,   120   Cal.   666;    People  v.   Gleason,  122  Cal.   372. 

62  Sec.  2052  C.  C.  P.;  People  v.  Ah  Lee  Chuck,  66  Cal. 
662;  People  v.  Roemer,  114  Cal.  51;  People  v.  Durrant, 
116  Cal.  179. 

63  Sec.  2052  C.  C.  P.;  People  v.  Garnett,  29  Cal.  622;  Peo- 
ple V.  Jenkins,'  56  Cal.  4;  People  v.  Salorse,  62  Cal.  139; 
People  V.   Rushing,   130   Cal.   449;    People  v.   Devine,   44 


352  CRIMINAL  LAW  AND  PROCEDURE. 

of  the  statement  if  such  a  thing  is  possible.''*  It  must 
appears  that  the  contradictory  statements  were  directly 
in  contradiction,  and  not  by  inference  where  another 
inference  might  be  drawn  in  favor  of  consistency.®'*  He  may 
be  cross-examined  whether  he  has  not  given  a  different 
account.""  After  the  witness  is  impeached  by  showing  he 
has  made  contradictory  statements,  he  cannot  be  sustained 
by  showing  that  he  has  made  to  others  the  same  statements 
as  those  to  which  he  testified.  But  it  may  be  introduced 
to  show  that  it  is  not  a  fabrication  of  late  date."  He  may 
be  impeached  by  evidence  of  statements  made  as  to  his 
motive  for  the  prosecution."^  After  the  foundation  has 
been  laid  for  the  impeachment  by  showing  the  time,  place, 
circumstances  and  the  persons  to  whom  the  statements  were 
made,  the  deposition  before  a  coroner's  jury,""*  or  an  affidavit 
made  in  a  civil  case  may  be  used  to  contradict  them.''" 
When  a  witness  gives  a  negative  answer  to  the  impeaching 
question  which  is  neither  favorable  nor  unfavorable  to  either 
side,  it  cannot  be  shown  that  he  made  contradictory  state- 
ments to  others.''^  The  defendant  may  be  impeached  in  the 
same  way  as  other  witnesses.''^  As,  for  instance,  by  a 
deposition  at  a  preliminary  examination."^  But  only  con- 
tradictory parts  are  admissible."*     The  time  of  the  state- 

Cal.  452;  People  v.  Bosquet,  116  Cal.  80;  People  v.  Lam- 
bert, 120  Cal.  176;  People  v.  Turner,  65  Cal.  540;  Peo- 
ple V.  Nonella,  99  Cal.  333;  People  v.  Chin  Hane,  108  Cal. 
597. 
«4  People  V.  Lee  Ah  Yute,  60  Cal.  95;  People  v.  Nonella. 
99  Cal.   335. 

65  People  V.  Collum,   122   Cal.   186. 

66  People  V.  Robles,  29  Cal.  44;  People  v.  Ebanks,  117 
Cal.  665. 

67  People  V.  Doyell,  48  Cal.  85. 

68  People  V.  Gardner,  98  Cal.  127;  People  v.  Lambert,  120 
Cal.  176. 

60  People  V.  Devine,  44  Cal.  452;  People  v.  Lambert.  120 
Cal.  175;  People  v.  Irwin,  77  Cal.  494;  People  v.  Bush- 
ton,  80  Cal.  160. 

70  People  V.  Samonset,  97  Cal.  448. 

71  People  V.  Goodwin,    123    Cal.    374. 

72  People  V.  Beck,  58  Cal.  212;  People  v.  Hickman,  113  Cal. 
87;  People  v.  Prather,  120  Cal.  666;  People  v.  O'Brien, 
66  Cal.  604;  People  v.  Rozelle,  78  Cal.  94;  People  r. 
Crowley,  100  Cal.  481. 

73  People  V.  Hawley,  111  Cal.  78. 

74  People  V.  Lambert,  120  Cal.  170. 


WITNESSES.  35? 

ment  need  not  be  specially  definite,  when  otherwise  the  con- 
versation is  sufficiently  identified.'''^  Impeachment  may  be 
founded  upon  the  question  as  to  whether  the  defendant  had 
endeavored  to  get  witnesses  to  prove  an  alibiJ®  If  the 
statements  be  in  writing,  they  must  be  shown  to  him  before 
any  question  is  put  concerning  them;''''  but  contradictory 
statements  not  in  writing  need  not  be  read  to  himJ*  The 
right  of  examination  of  the  testimony  is  one  of  justice,'" 
for  the  purpose  of  explaining  it,  if  possible.^"  Defendant 
may  be  impeached  by  testimony  in  his  own  behalf.*^  Not- 
withstanding the  question  tends  to  prove  another  offense, 
if  it  is  for  the  purpose  of  laying  the  foundation  for  impeach- 
ment as  to  contradictory  statements,  it  is  proper.^^  There 
is  no  inflexible  rule  as  to  the  form  of  question  on  impeach- 
ment; it  is  only  necessary  that  the  proper  foundation  be 
laid.®^  A  recognized  rule,  or  rather  qualification  of  the 
rule,  governing  the  impeachment  of  the  credit  of  a  witness 
by  proof  of  contradictory  statements  elsewhere  made  by 
him  is  that  the  matter  involved  in  the  supposed  contradic- 
tion must  not  itself  be  merely  collateral  in  its  character  but 
must  be  relevant  to  the  issue  being  tried.**  Where  he  is 
examined  as  to  collateral  and  irrelevant  matters  not  in  issue 
in  the  case,  his  answers  thereto  binds  the  party  asking  the 
questions.*^ 

75  People  V.  Bosquet,  116  Cal.  75;  People  v.  Lambert,  120 
Cal.  176. 

76  People  V.  Louie   Foo,   112   Cal.   17. 

77  Sec.  2052  C.  C.  P.;  People  v.  Ching  Hing  Chang,  74  Cal. 
389. 

78  People  V.  Kruger,   100   Cal.    523. 

79  People  V.  Shaver,  120  Cal.  354. 

80  People  V.  Lambert,  120  Cal.  170;  People  v.  Shaver,  120 
Cal.  354. 

81  People  V.  Mayes,  113  Cal.  618;  People  v.  Gleason,  122 
Cal.  372. 

82  People  V.  Little  Pete,  123  Cal.  373. 

83  People  V.  Roberts,  122  Cal.  377. 

84  People  V.  Furtado,  57  Cal.  346;  People  v.  Webb,  70  Cal. 
121;  People  v.  Chin  Mook  Sow,  51  Cal.  597;  People  v. 
Kalkman,  72  Cal.  212;  People  v.  Dice,  120  Cal.  189; 
People  V.  Collins,  105  Cal.  504;  People  v.  Devine,  44 
Cal.  452;  People  v.  Dye,  75  Cal.  108;  People  v.  Tiley, 
84   Cal.   651;    Faulkner  v.   Rondoni,   104  Cal.  148. 

85  People  V.  McKellar,  53  Cal.  65;  People  v.  Bell,  53  Cal. 
120;    People  v.  Durrant,  116  Cal.  211;    People  v.  Webb, 

CRIMES--23 


554 


CRIMINAL  LAW  AND  PROCEDURE. 


IMPEACHING   OWN    WITNESSES. 


The  party  producing  a  witness  is  not  allowed  to  impeach 
his  credit  by  evidence  of  bad  character,  but  he  may  contra- 
dict him  by  other  evidence,  and  may  also  show  that  he  has 
made  at  other  times,  statements  inconsistent  with  his  pres- 
ent testimony.^  The  party  calling  cannot  impeach  the  wit- 
ness by  proof  of  declarations  made  contradictory  to  the  tes- 
timony given-  unless  he  has  been  actually  surprised  by  such 
testimony,'  and  the  evidence  is  damaging  to  his  cause.* 
Even  where  the  testimony  of  a  party's  own  witness  is  unex- 
pected, if  it  is  not  unfavorable,  it  cannot  be  contradicted.' 
A  party  cannot  impeach  his  own  witnesses  by  evidence  of 
his  declarations  produced  contrary  to  a  stipulation  as  to 
the  testimony  of  such  witness.® 

PRIVILEGE  OF  WITNESSES. 

A  witness  need  not  give  an  answer  which  will  have  a 
tendency  to  subject  him  to  punishment  for  a  felony;  nor 
need  he  give  an  answer  which  will  have  a  direct  tendency 
to  degrade  his  character,  unless  it  be  to  the  very  fact  in 
issue,  or  to  a  fact  from  which  the  fact  in  issue  would  be 
presumed.  But  a  witness  must  answer  as  to  the  fact  of  his 
previous  conviction  for  a  felony.''  Where  the  answer  to  the 
question  would  subject  the  witness  to  a  criminal  punish- 
ment, he  is  not  privileged  from  answering,  on  the  ground 
that  the  answer  would  disgrace  him,  but  solely  that  it  will 
incriminate  him ;  in  other  words,  the  grounds  taken  for  the' 

70  Cal.  121;  People  v.  Crandall,  125  Cal.  129;  People 
V.  Tiley,  84  Cal.  651;  People  v.  Worthington,  105  Cal. 
166. 

1  Sec.  2049  C.  C.  P. 

2  People  V.  Wallace,  89  Cal.  158;  In  re  Kennedy,  104  Cal. 
429. 

3  People  V.  Johnson,  131  Cal.  511;  People  v.  Crespi,  116 
Cal.  50. 

4  People  V.  Mitchell,  94  Cal.  550;  People  v.  Conkling,  111 
Cal.  624. 

6  People  V.  De  "Witt,  68  Cal.  586;  People  v.  Conkling,  111 
Cal.  624;  People  v.  Wallace,  89  Cal.  164;  People  v. 
Mitchell,  94  Cal.  556;  People  v.  Jacobs,  49  Cal.  384; 
People  V.  Crespi,  115  Cal.  55. 

6  People  V.   Hawes,  98  Cal.  648. 

7  Sec.  2065  C.  C.  P. 


WITNESSES.  355 

privilege  claimed  must  be  specified,  and  the  witness  is  con- 
fined to  the  grounds  named.^  The  rule  does  not  extend  to 
cases  where  the  law  protects  a  witness  from  the  prosecu- 
tion if  he  testifies.®  If  he  has  the  protection  of  the  statute 
that  the  testimony  cannot  be  used  against  him,  he  is  bound 
to  answer.^"  Where  a  witness  with  knowledge  of  his  right 
testifies  to  a  fact,  he  can  be  examined  by  the  opposite  party 
fully."  He  is  not  the  judge  of  whether  the  evidence  will 
tend  to  incriminate  him,  but  the  court  must  decide.^-  The 
right  to  call  the  witness  is  not  affected  by  the  fact  that  the 
witness  may  exercise  his  privilege  and  refuse  to  testify.^' 
He  cannot  claim  the  privilege  and  refuse  to  be  sworn,  but 
may  refuse  to  answer  questions  after  he  is  sworn  which 
will  incriminate  him_|_in  other  words,  he  cannot  claim  the 
privilege  until  the  question  is  put  to  him.^*  It  is  only 
when  the  question  is  not  pertinent  to  the  issue  that  the  wit- 
ness may  assign,  as  a  refusal. for  the  answer,  that  it  tends 
to  disgrace  him.^^  The  witness  must  claim  the  privilege 
himself;  the  defandant  cannot  do  it  for  him.^^  The  defend- 
ant when  testifying  in  his  own  behalf,  is  not  entitled  to  a 
gneater  privilege  than  any  other  witness.^"^  The  privilege 
is  not  waived,  however,  by  the  witness  testifying  to  the 
same  fact  elsewhere. ^^ 

DEFENDANT  AS  A  WITNESS. 

No  person  can  be  compelled,  in  a  criminal  action,  to  be  a 

witness  against  himself  ;^®  but  if  the  defendant  offers  himself 

8  Ex  parte  Rowe,  7  Cal.  184. 

»  People  V.  Cohen,  104  Cal.  524;  People  v.  Sternberg,  111 
Cal.  8. 

10  Ex  parte  Rowe,   7   Cal.    184. 

11  People  V.  Freshour,    55   Cal.    375. 

12  Overend  v.  Superior  Court,  131  Cal.  280;  Ex  parte  Stice, 
70  Cal.  53;  In  re  Rogers,  129  Cal.  468;  Ex  parte  Zee- 
handelaar,  71   Cal.   238. 

13  People  V.  Plyler,  121  Cal.  160;  Ex  parte  Stice,  70  Cal. 
51. 

1*  Ex  parte  Stice,  70  Cal.  51;  People  v.  Plyler,  121  Cal.  160. 

15  Ex  parte  Rowe,  7  Cal.  184. 

i«  People  V.  Rodundo,  44  Cal.  538. 

17  People  V.  Reinhart,  39  Cal.  449;  People  v.  Beck,  58  Cal. 
212;  People  v.  O'Brien,  66  Cal.  604;  People  v.  Rozelle, 
78  Cal.   94. 

18  Overend  v.  Superior  Court,  131  Cal.  280. 

19  Penal  Code  688. 


356  CRIMINAL  LAW  AND  PROCEDURE. 

as  a  witness,  he  may  be  cross-examined  by  the  counsel  for 
the  people  as  to  all  matters  about  which  he  was  examined  in 
chief.  His  neglect  or  refusal  to  be  a  witness  cannot  in  any 
manner  prejudice  him,  nor  be  used  against  him  on  the 
trial  or  proceeding.-*'  The  fact  that  the  defendant  offers 
himself  as  a  witness  in  his  own  behalf  does  not  modify  or 
change  the  rules  as  to  the  limits  of  cross-examination;  he 
cannot  be  made  a  witness  against  himself  without  his  con- 
sent.^^  It  is  proper  to  consider  the  relationship  and  situa- 
tion under  which  he  testifies ;  the  consequences  to  him  from 
the  result  and  the  inducements  to  influence  his  own  posi- 
tion,'^*  and  the  jury  may  be  cautioned  as  to  his  interest  as 
bearing  on  the  weight  of  his  evidence.^^  The  defendant 
may  be  cross-examined  as  to  a  prior  conviction  of  a  felony 
or  as  to  any  matter  tending  to  discredit  him.^*  But  it  must 
be  limited  to  the  matters  brought  out  on  the  direct  examina- 
tion.^'' It  may  be  had  for  two  purposes,  to  show  express 
malice,  and  to  lay  the  foundation  for  impeachment.^*  The 
right   should   be  liberally    construed.^'     The  court   is  not 

20  Penal  Code  1323. 

21  People  V.  McGungill,  41  Cal.  429;  People  v.  Rozelle,  78 
Cal.  93;   People  v.  Sanders,  114  Cal.  238. 

22  People  V.  Morrow,  60  Cal.  147;  People  v.  Wheeler,  65 
Cal.  77;  People  v.  O'Neal,  67  Cal.  379;  People  v.  Fehren- 
bach,   102   Cal.    402. 

23  People  V.  O'Neal,  67  Cal.  378;  People  v.  Fehrenbach, 
102  Cal.  402;  People  v.  Wheeler,  65  Cal.  78;  People  v. 
Ferry,   84   Cal.   31. 

24  People  V.  Arnold,  116  Cal.  387;  People  v.  Meyer,  75 
Cal.  383;  People  v.  Rozelle,  78  Cal.  94;  People  v.  Dole, 
122   Cal.   497. 

25  People  V.  Rozelle,  78  Cal.  84;  People  v.  O'Brien,  66  Cal. 
602;  People  v.  Gallagher,  100  Cal.  475;  People  v.  Crow- 
ley, 100  Cal.  481;  People  v.  Warner,  117  Cal.  639;  Peo- 
ple V.  Baird,  104  Cal.  462;  People  v.  Deegan,  88  Cal. 
602;  People  v.  Yeaton,  75  Cal.  416;  People  v.  Brown,  76 
Cal.  574;  People  v.  Wong  Ah  Leong,  99  Cal.  442;  Peo- 
ple V.  Un  Dong,  106  Cal.  88;  People  v.  Bishop,  81  Cal. 
113;  People  v.  Sehorn,  116  Cal.  504;  People  v.  Miller, 
33  Cal.  99;  People  v.  Wong  Ah  Leong,  99  Cal.  442;  Peo- 
ple V.  Johnson,  57  Cal.  573;  People  v.  Holmes,  118  Cal. 
444;  People  v.  Wong  Chuey,  117  Cal.  624;  People  v. 
Valiere,  123  Cal.  576;   People  v.  Denby,  108  Cal.  55. 

26  People  V.  Dennis,  39  Cal,  625;  People  v.  Crowley,  100 
Cal.  481;   People  v.  Rozelle.  78  Cal.  94. 

27  People  V.  Westlake,  124  Cal.  452;  People  v.  Gallagher, 
100  Cal.  476. 


WITNESSES.  357 

allowed  that  discretion  as  to  the  extent  of  the  scope  of  the 
cross-examination  which  it  is  permitted  to  exercise  in  the 
examination  of  other  witnesses,  but  as  to  all  matters  about 
which  he  Was  examined  in  chief  he  may  be  cross-examined 
as  fully  as  any  other  witness.-®  The  defendant  has  the 
constitutional  right  to  be  protected  from  forced  examination 
as  to  any  matters  concerning  which  he  has  not  voluntarily 
testified  in  his  own  behalf,  and  no  evidence  can  be  wrung 
from  him.^**  Oflfering  himself  as  a  witness  does  not  waive 
the  right,  nor  alter  or  change  the  rule  against  making  him- 
self a  witness  against  himself.^"  Wide  latitude  should  be 
granted,  however,  in  murder  cases  where  the  defendant 
denies  the  killing.^^  The  defendant  may  be  asked  on  cross- 
examination  how  the  deceased  could  have  reached  him  with 
a  knife  at  the  distance  between  them,^^  and  it  may  be  shown 
that  the  conduct  of  the  defendant  was  inconsistent  with  his 
direct  testimony.^^  And  where  the  defendant  admits  that 
he  was  in  the  neighborhood  of  the  place  where  the  crime 
was  committed  at  the  time,  he  may  be  asked  his  business 
there. ^*  If  he  testifies  as  to  his  birth,  parentage,  education, 
etc.,  he  may  be  asked  whether  he  was  ever  arrested  before." 

COMPELLING   ATTENDANCE. 

A  bench  warrant  for  absent  witnesses  will  not  be  issued 
without  a  showing  that  the  evidence  expected  from  them 
is  material  to  the  defense. •'^''  An  order  for  the  attendance 
of  witnesses  in  the  state  prison  does  not  issue  as  a  matter 

28  People  V.  O'Brien,  96  Cal.  171;  People  v.  Crowley,  100 
Cal.  482;  People  v.  Arrighini,  122  Cal.  126;  People  v. 
Dole,  122  Cal.  486;  People  v.  Gallagher,  100  Cal.  466; 
People  V.  Gordon,  103  Cal.  572;  People  v.  Bldleman,  104 
Cal.  615;  People  v.  Mayes,  113  Cal.  624;  People  v. 
Durrant,  116  Cal.  219. 

29  People  V.  Arrighini,    122    Cal.    126. 

30  People  V.  Gallagher,  100  Cal.  466;  People  v.  McGungill, 
41  Cal.  429;  People  v.  Devine,  44  Cal.  452;  People  v. 
Arrighini,    122    Cal.    121. 

31  People  V.  Mullings,   83   Cal.  138. 

32  People  V.  Gleason,   127   Cal.   323. 

33  People  V.  Bidleman,    104    Cal.    608. 

34  People  V.  Clark,   106   Cal.   32. 

85  People  V.  Fong   Ching,   78    Cal.   169. 
36  People  V.  Marseiler,  70  Cal.  98. 


358  CRIMINAL  LAW  AND  PROCEDURE. 

of  right ;  the  court  may  refuse  it  in  its  discretion,  and  order 
their  depositions  taken. ^^  The  order  compelling  the  attend- 
ance of  such  a  witness  cannot  be  procured  by  mandamus.^' 
Such  a  proceeding  is  in  the  nature  of  a  writ  of  habeas  corpus 
ad  testiUcandum,  and  there  must  be  a  showing  of  good  faith, 
etc." 

EXCLUSION  OF  WITNESS  DURING  TRIAL. 

If  either  party  requires  it,  the  judge  may  exclude  from 
the  court  room  any  witness  of  the  adverse  party,  not  at  the 
time  under  an  examination,  so  that  he  may  not  hear  the  tes- 
timony of  other  witnesses.'*"  The  exclusion  of  a  witness 
during  a  trial  rests  in  the  sound  discretion  of  the  court,*^ 
and  the  court  may  make  exceptions  to  the  rule.*^  A  dis- 
obedience of  the  order  of  court  excluding  the  witness  can- 
not be  punished  by  rejecting  the  testimony  of  such  wit- 
ness.*' 

UNDERTAKING   FOR   WITNESS. 

When  the  magistrate  or  a  judge  of  the  court  in  which  the 
action  is  pending  is  satisfied,  by  proof  on  oath,  that  there  is 
reason  to  believe  that  any  such  witness  will  not  appear  and 
testify  unless  security  is  required,  he  may  order  the  witness 
to  enter  into  a  written  undertaking,  with  sureties,  in  such 
sum  as  he  may  deem  proper,  for  his  appearance  at  the  court 
to  which  the  depositions  and  statements  are  to  be  sent." 
Infants  and  married  women  who  are  material  witnesses 
against  the  defendant,  also  may  be  required  to  procure 
sureties  for  their  appearance.''^  A  witness  can  be  required 
to  give  an  undertaking  for  his  appearance  only  when  he  has 

37  People  V.  Putman,  129  Cal.  258;  Willard  v.  Superior 
Court,  82  Cal.  456;  Willard  v.  Superior  Court,  9?  Cal. 
486. 

38  Willard  v.  Superior  Court,  82  Cal.  456;  Willard  v. 
Superior  Court,     92  Cal.  485. 

3»  Willard  v.  Superior  Court,  92  Cal.  482. 

40  Sec.  2043  C.  C.  P. 

41  People  V.  Garnett,  29   Cal,  622. 

42  People  V.  Sam  Lung,  70  Cal.  517;  People  v.  Hong  Ah 
Duck,  61  Cal.  387;  People  v.  McCarty,  117  Cal.  65. 

43  People  V.  Boscovitch,   20    Cal.    436. 

44  Penal  Code  879. 

45  Penal  Code  880. 


WITNESSES.  359 

been  examined  before  the  magistrate/^  And  upon  his  fail- 
ure to  give  an  undertaking  to  appear,  his  deposition  should 
be  taken  conditionally.'*^ 

EXAMINATION  OF  WITNESSES. 

The  court  must  exercise  a  reasonable  control  over  the 
mode  of  interrogation,  so  as  to  make  it  as  rapid,  as  distinct, 
as  little  annoying  to  the  witness,  and  as  effective  for  the 
extraction  of  the  truth  as  may  be;  but  subject  to  this  rule 
the  parties  may  put  such  pertinent  and  legal  questions  as 
they  see  fit.  The  court,  however,  may  stop  the  production 
of  further  evidence  upon  any  particular  point  when  the  evi- 
dence upon  it  is  already  so  full  as  to  preclude  reasonable 
doubt.**  The  examination  of  a  witness  by  the  party  pro- 
ducing him  is  denominated  the  direct  examination ;  the 
examination  of  the  same  witness,  upon  the  same  matter, 
by  the  adverse  party,  the  cross-examination.  The  direct 
examination  must  be  completed  before  the  cross-examina- 
tion begins,  unless  the  court  otherwise  direct.*^  Cross- 
examination  on  immaterial  matters  may  be  stopped  by  the 
trial  court.^"  A  witness  may  be  interrogated  as  to  any 
matters  which  tend  to  show  bias,^^  or  animus,^-  and  cross- 
examination  of  the  witnesses  on  the  part  of  the  prosecution 
should  be  allowed  wide  latitude,^^  but  where  cross-examina- 
tion is  improperly  rejected,  it  is  not  reversible  if  the  error 
was  immaterial.^*     For  the  purpose  of  proving  animus  it 

46  Ex  parte  Shaw,  61  Cal.   58. 

■«7  People  V.  Lee,  49  Cal.  37,  and  Penal  Code  882.  This 
is  authorized  by  sec.  13  Art.  I,  Constitution  which  pro- 
vides that  "The  legislature  shall  have  power  to  pro- 
vide for  the  taking,  in  the  presence  of  the  party 
accused  and  his  counsel  of  depositions  of  witnesses  in 
criminal  cases,  other  than  cases  of  homicide,  when 
there  is  reason  to  believe  that  the  witness,  from 
inability  or  other  cause,  cannot  attend  at  the  trial." 

■18  Sec.  2044  C.  C.  P. 

«  Sec.  2045  C.  C.  P. 

50  People  v.  Durrant,   116   Cal.   182. 

51  People  V.  Benson,  52  Cal.  380;  People  v.  Wasson,  65 
Cal.  538;   People  v.  O'Brien,  66  Cal.  604. 

52  People  V.  Worthington,  105  Cal.  166. 

53  People  V.  Baldwin,    117    Cal.    244. 

54  People  V.  Greening,  102  Cal.  384;  People  v.  Prather,  120 
Cal.    665. 


360  CRIMINAL  LAW  AND  PROCEDURE. 

may  be  shown  on  cross-examination  that  the  witness  had 
caused  defendant  to  bq  arrested  and  tried,  and  that  he  was 
acquitted,  but  on  redirect  examination  he  cannot  be  per- 
mitted to  state  facts  in  connection  with  the  charge.'*''  If  a 
witness  is  cross-examined  on  conflicting  statements  made  by 
him,  he  is  entitled  to  have  the  same  read  to  him  before  being 
interrogated  thereon.^^  Redirect  examination  must  be  con- 
fined to  evidence  given  on  the  cross-examination,"*^  but  a 
witness  may  be  recalled  for  further  examination  within  the 
discretion  of  the  court,°^  or  he  may  be  withdrawn  to  connect 
his  testimony."*  On  redirect  examination  he  may  be 
allowed  to  remove  inferences  left  by  the  cross-examina- 
tion.'" The  recalling  of  witnesses,"^  and  the  reopening  of 
the  case  for  further  evidence,  is  within  thei  discretion  of  the 
court.®^  The  court  may  allow  testimony  to  be  repeated,"' 
and  may  receive  evidence  on  the  faith  of  the  counsel's  state- 
ment that  he  will  subsequently  show  its  relevancy,  but  if  it 
is  not  connected,  the  court  should  strike  it  out  and  caution 
the  jury  against  considering  it.®* 

55  People  V.  Webster,   89   Cal.    572. 

56  People  V.  Lee  Chuck,  78  Cal.  318. 

57  People  T.  Van  Ewan,  111  Cal.  144. 

58  People  V.  McNamara,  94  Cal.   509. 

59  People  V.  Prather,   120   Cal.    660. 

60  People  V.  Smallman,  55  Cal.  185. 

61  People  V.  Moan,  65  Cal.  532. 

62  People  V.  Ross,  65  Cal.  104;  People  v.  Christensen,  85  Cal. 
570;  People  v.  Bene,  130  Cal.  159;  People  v.  Keith,  50 
Cal.  137. 

63  People  V.  Clark,  84  Cal.  573;  People  v.  Emerson,  130 
Cal.  562. 

6*  People  V.  McLean,   84   Cal.   480. 


CHAPTER  LIX. 


KVIDBNCB. 


Judicial  evidence  is  the  means,  sanctioned  by  law,  of 
ascertaining  in  a  judicial  proceeding  the  truth  respecting 
a  question  of  fact.^  Proof  is  the  effect  of  evidence,  the 
establishment  of  a  fact  by  evidence.^  The  law  does  not 
require  demonstrations ;  that  is,  such  degree  of  proof  as, 
excluding  possibility  or  error,  produces  absolute  cctainty, 
because  such  proof  is  rarely  possible.  Moral  certainty  only 
is  required,  or  that  degree  of  proof  which  produces  con- 
viction in  an  unprejudiced  mind.^ 

CIRCUMSTANTIAL    EVIDENCE. 

There  are  two  classes  of  evidence  recognized  and  admit- 
ted in  courts  of  justice,  upon  either  of  which  the  jury  may 
lawfully  find  an  accused  guilty  of  crime.  One  is  direct  or 
positive  testimony  of  an  eye-witness  to  the  commission  of 
the  crime,  and  the  other  is  proof  by  testimony  of  a  chain 
of  circumstances  pointing  sufficiently  strong  to  the  commis- 
sion of  the  crime  by  the  defendant,  and  which  is  known  as 
circumstantial  evidence.  Such  evidence  may  consist  of 
admissions  by  the  defendant,  plans  laid  for  the  commission 
of  the  crime,  such  as  putting  himself  in  a  position  to  com- 
mit ;  threats  previous  to  the  commission  of  the  crime  tending 
to  show  hostility,  etc. ;  in  short,  any  acts,  declarations  or 
circumstances  admitted  in  evidence  tending  to  connect  the 
defendant  with  the  commission  of  the  crime.*     Circumstan- 

1  Sec.  1823  C.  C.  P. 

2  Sec.  1824  C.  C.  P. 

3  Sec.  1826  C.  C.  P. 

4  People  V.  Neary,    104   Cal.    373;    People   v.    Anthony,   56 
Cal.  397;   People  v.  Morrow,  60  Cal.  142. 


362  CRIMINAL  LAW  AND  PROCEDURE. 

tial  evidence  includes  any  fact  which  may  tend  to  prove  the 
issue,"  or  connect  the  accused  with  the  commission  of  the 
crime."  It  is  essential  that  in  the  chain  of  facts  relied  upon 
each  fact  must  be  established  to  a  moral  certainty  or  beyond* 
a  reasonable  doubt.^  A  reasonable  doubt  as  to  any  link  in 
the  chain  of  circumstantial  evidence  entitles  the  defendant  to 
an  acquittal.^  The  proof  must  be  consistent  not  only  with 
the  guilt  of  the  defendant,  but  it  must  be  inconsistent  with 
any  other  rational  theory."  All  the  circumstances  should 
not  only  tend  to,  but  should  establish  the  defendant's  guilt. ^** 
But  it  need  not  be  absolutely  incompatible  with  innocence 
and  incapable  of  explanation  upon  other  reasonable  hypothe- 
sis than  guilt. ^^  And  where  the  circumstantial  evidence  is 
persuasive  of  guilt,  a  conviction  on  it  will  not  be  disturbed." 
But  the  verdict  is  not  dependable  upon  a  superior  number 
of  probabilities  on  either  side.^^  It  need  not  exclude  every 
other  hypothesis  than  guilt.^*  Where  the  chain  of  circum- 
stances leads  to  two  opposite  conclusions,  one  of  which  must 
be  wrong,  it  does  not  necessarily  imply  the  defendant's 
innocence,  as  both  may  lead  to  conclusions  of  his  guilt."  In 
order  to  convict,  the  circumstances  must  be  such  as  to  pro- 

5  People  V.  Sullivan,    129    Cal.    557;    People    v.    Hill,    123 

Cal.    571. 
8  People  V.  Rolfe,   61   Cal.  540;    People  v.  Armstrong,   114 

Cal.  574;    People  v.  Ebanks,  117  Cal.  663. 

7  People  V.  Phipps,  39  Cal.  326;  People  v.  Ah  Chung,  54 
Cal.  403;   People  v.  Smith,  106  Cal.  78. 

8  People  V.  Smith,  106  Cal.  73. 

9  People  V.  Strong,  30  Cal.  151;  People  v.  Davis,  64  Cal. 
441;  People  v.  Lachanais,  32  Cal.  435;  People  v.  Ram- 
irez, 56  Cal.  538;  People  v.  Dick,  32  Cal.  213;  People 
V.  Murray,  41  Cal.  67;  People  v.  Gosset,  93  Cal.  644; 
People  V.  Eckman,  72  Cal.  582;  People  v.  Ward.  105 
Cal.  342;  People  v.  Padillia,  42  Cal.  539;  People  v. 
Cronin,  34  Cal.  191;  People  v.  Morrow,  60  Cal.  146; 
People  v.  Hardisson,  61  Cal.  380;  People  v  Sansome, 
84  Cal.   456;    People  v.   Shuler,  28  Cal.  490. 

10  People  v.  Paulsen,  115  Cal.   6. 

11  People  V.  Murray,  41  Cal.  66;  People  v.  Eagan,  116  Cal 
287;  People  v.  Nelson,  85  Cal.  421;  People  v.  Rushing, 
130  Cal.  449;   People  v.  Dole.  122  Cal.  495. 

12  People  v.  Gibson,    106    Cal.    458. 

13  People  v.  Sansome,  84  Cal.  449;  People  v.  Dilwood,  94 
Cal.  90. 

14  People  v.  Ward,   105    Cal.   335. 

15  People  v.  Clarke,  130  Cal.  642. 


EVIDENCE.  363 

diice  nearly  the  same  degree  of  certainty  as  direct  evidence.^' 
There  is  nothing  in  its  nature  which  renders  it  any  less 
reliable  than  other  classes  of  evidence,"  and  the  court  should 
not  instruct  the  jury  that  circumstantial  evidence  is  not 
likely  to  be  fabricated,  or  make  any  declarations  as  to  the 
relative  probative  force  of  direct  and  circumstantial  evi- 
dence/^ If  it  produces  in  the  minds  of  the  jury  a  conclusion 
of  defendant's  guilt  l^eyond  a  reasonable  doubt,  is  is  suf- 
ficient.^" Circumstantial  evidence  may  be  rebutted  by  evi- 
dence tending  to  fasten  the  crime  on  some  other  person 
than  defendant.-"  The  court  may  instruct  the  jury  against 
attaching  too  much  importance  to  certain  cases  called  to 
its  attention  by  counsel  for  defendant  showing  instances 
in  which  innocent  persons  have  been  convicted  upon  circum- 
stantial evidence,-^  but  the  jury  has  a  right  to  consider 
that  innocent  men  have  been  convicted. ^^ 

ACCOMPLICE. 

An  accomplice  is  an  accessory  before  the  fact  and  not 
after.^'  Thus  a  party  receiving  stolen  goods  is  not  an  accom- 
plice with'  the  thief,^*  and  cannot  be  convicted  of  larceny  as 

18  People  V.  Padillia,    42    Cal    535. 

17  People  V.  Urquldas,  96  Cal.  239;  People  v.  Durrant,  lift 
Cal.  179;  People  v.  Morrow,  60  Cal.  142. 

18  People  V.  Vereneseneckockockhoff,  129  Cal.  497.  This 
case  overrules:  People  v.  Cronin,  34  Cal.  191;  People 
v.  Morrow,  60  Cal.  142;  People  v.  Urquidas,  96  Cal.  241; 
People  V.  Durrant,  116  Cal.  179;  People  v.  Hardisson, 
61  Cal.  378;  where  in  each  case  the  court  instructed 
the  jury  as  to  the  relative  value  of  direct  and  circum- 
stantial evidence.  Indeed,  the  Cronin  case  has  been 
overruled  so  often  and  upon  so  many  different  points 
that  about  the  only  thing  that  has  been  left  is  the  suf- 
ficiency of  the  indictment  for  murder. 

la  People  v.  Kelly,  28  Cal.  424;  People  v.  Kerrick,  52  Cal. 
447;  People  v.  Carrillo,  70  Cal.  645;  People  v.  Ferry,  84 
Cal.  34;  People  v.  Beck,  58  Cal.  213;  People  v.  Hariis- 
son,   61   Cal.   380. 

20  People  V.  Myers,  70  Cal.  582;  People  v.  Sanders,  114 
Cal.  234. 

21  People  V.  Ah  Fook,   64  Cal.   380. 

22  People  V.  Travers,  88  Cal.  237;  People  v.  Cronin,  34  CaL 
191. 

23  People  V.  Collum,   122   Cal.   186. 

24  People  V.  Clausen,   120   Cal.    381. 


-364  CRIMINAL  LAW  AND    PROCEDURE. 

an  accessory  after  the  fact.^*^  The  betting  at  a  game  does 
not  make  the  person  an  accessory  to  the  crime  of  carrying 
on  such  game.^°  The  evidence  of  the  acts  of  an  accomplice 
are  admissible,  even  though  he  is  not  on  trial."  The  state- 
ments of  an  accomplice  are  also  admissible,'^®  but  not  state- 
ments made  extrajudicially  and  outside  of  defendant's  pres- 
ence and  not  in  furtherance  of  the  object  of  the  criminal 
enterprise ;-®  nor  his  declarations  made  after  the  offense  was 
consummated.^"  Neither  is  the  flight  of  the  accomplice 
admissible  to  rebut  evidence  of  self-defense,  nor  does  his 
hiding  tend  to  disprove  an  alibi  of  defendant.'^  The  flight 
is  not  a  part  of  the  res  gestae  and  is  not  admissible  against 
the  accomplice,  unless  it  is  in  furtherance  of  the  crime.'* 
Neither  is  the  acquittal  of  the  accomplice!  of  the  charge  evi- 
dence of  his  not  having  been  an  accomplice.^*  An  opinion 
of  the  accomplice  is  not  admissible.** 

CORROBORATION  OF  THE  TESTIMONY!  OF  AN   ACCOMPLICE. 

A  defendant  cannot  be  convicted  upon  the  uncorroborated 
testimony  of  an  accomplice.*^  There  must  be  other  evidence 
which  tends  to  prove  defendant's  complicity  in  the  crime," 
aside  from,  and  without  the  aid  of  the  testimony  of  the 

25  People  V.  Stakem,  40  Cal.  599. 

26  Ex  part©  Ah  Yem,   53   Cal.  246. 

27  People  V.  Murphy,  39  Cal.   52. 

28  People  V.  Garcia,   63  Cal.  19. 

20  People  V.  Moore,  45  Cal.   19;   People  v.   Stanley,  47  Cal. 

118;    People   v.   Oldham,   111   Cal.   653. 
80  People  V.  English,  52  Cal.  212;   People  v.  Aleck,  61  Cal. 

139;    People  v.   Gonzales,   71  Cal.   577;    People  v.  Irwin, 

77    Cal.    505. 
31  People  V.  Lee  Chuck,  78  Cal.  317. 

82  People  V.  Stanley,  47  Cal.  113;  People  v.  Collins,  48 
Cal.  278;  People  v.  Wong  Ah  Ngow,  54  Cal.  153;  Peo- 
ple V.  Ramirez,  56  Cal.  537;  People  v.  Welch,  63  Cal. 
168;  People  v.  Giancoli,  74  Cal.  644;  People  v.  Irwin, 
77  Cal.   506. 

83  People  V.  Creegan,  121  Cal.  554;  People  v.  Mitchell,  100 
Cal.  328. 

3*  People  V.  Mitchell,  100  Cal.  328. 

30  People  V.  Smith,  98  Cal.  218;    People  v.  Main,  114  Cal. 

634;   People  v.  Koening,  99  Cal.  574. 
88  People  V.  Ribolsi,  89  Cal.  492. 


EVIDENCE.  365 

accompHce.^^  In  order  to  convict  upon  the  testimony  of  an 
accomplice  with  corroborating  evidence,  the  corroboration 
must  connect  the  defendant  with  the  offense  charged,  and 
not  merely  show  the  fact  of  the  commission  of  the  crime  by 
some  one.^^  He  must  be  corroborated  to  show  the  existence 
of  a  conspiracy,  and  that  the  defendant  was  a  member  of 
that  conspiracy.^®  The  corroborating  evidence  need  not 
tend  to  establish  the  precise  facts  testified  to  by  the  accom- 
plice,*" and  strong  corroboration  is  not  necessary.*^  Admis- 
sions made  by  defendant  are  sufficient,*-  and  so  is  the  finding 
of  the  stolen  property  on  the  accused  sufficient  to  connect 
him  with  the  burglary.*^  But  the  corroboration  must  do 
more  than  tend  to  raise  a  mere  suspicion  of  guilt.**  It  must 
tend  to  connect  the  defendant  with  the  crime,*°  but  it  need 
not  be  corroborated  in  every  detail.*®  Evidence  of  the 
accomplice  is  inadmissible  to  impeach  the  defendant.*^  The 
court  will  permit  wide  latitude  in  the  cross-examination  of 
an  accomplice.*^  The  sufficiency  of  the  evidence  is  a  ques- 
tion for  the  jury.*^     And  also  it  is  for  the  jury  to  determine 

37  People  V.  Ames,  39  Cal.  403;  People  v.  Melvane,  39  Cal. 
615;  People  v.  Clough,  73  Cal.  351;  People  v.  McLean, 
84  Cal.  482;  People  v.  Cregan,  121  Cal.  554;  People  v. 
Koening,    99    Cal.    576;    People    v.    Warren,    39    Cal.    661. 

38  People  V.  Eckert,  16  Cal.  Ill;  People  v.  Ames,  39  Cal. 
405. 

39  People  V.  Compton,  123  Cal.  403;  People  v.  Irwin,  77 
Cal.  502. 

40  People  V.  Cloonan,  50  Cal.  449;  People  v.  Grundell,  75 
Cal.  305;   People  v.  Barker,  114  Cal.  620. 

41  People  V.  Cleveland,  49  Cal.  577. 

■42  People  V.  Grundell,  75  Cal.  305;   People  v.  Zimmerman, 

65  Cal.  307. 
43  People  V.  Getty,  49  Cal.  58. 
**  People   V.   Thompson,   50   Cal.   480;    People   v.    Ames    39 

Cal.    403;    People    v.    McLean,    84    Cal.    482;    People    v. 

Smith,  98  Cal.  218;   People  v.  Main.  114  Cal.  634. 

45  People  V.  McLean,  84  Cal.  480;  People  v.  Sternberg, 
111  Cal.  6;  People  v.  Clough,  73  Cal.  348;  People,  v. 
Lynch,  122  Cal.  501;  People  v.  Barker,  114  Cal.  620; 
People  V.   Ribolsi,   89  Cal.   498. 

46  People  V.  Kunz,  73  Cal.  313;  People  v.  Grundell,  75  Cal. 
303;   People  v.  Barker,  114  Cal.  620. 

47  People  V.  Conkling,  111  Cal  616;  People  v.  Collum,  122 
Cal.  188. 

48  People  V.  Williams,  18  Cal.  187. 

49  People  V.  Barker,  114  Cal.  617;  People  v.  Whelan,  IIT 
Cal.  561. 


366  CRIMINAL  LAW  AND  PROCEDURE. 

whether  the  witness  was  an  accomplice.^"  The  testimony  of 
an  accomplice  should  be  viewed  with  distrust  and  oral  admis- 
sions of  the  party  received  with  caution,^^  but  a  person  who 
feigns  to  be  an  accomplice,  under  the  direction  of  an  officer, 
and  acts  for  the  purpose  of  ferreting  out  crime,  is  not  an 
accomplice  and  need  not  be  corroborated.'^^  Evidence  of  the 
defendant  attempting  to  alien  witinesses  against  him  is 
admissible  as  corroboration,  but  the  rule  is  otherwise  as  to 
similar  attempts  by  third  persons. °^  When  the  testimony  is 
shown  to  correspond  with  that  of  other  witnesses  or  com- 
port with  facts  otherwise  proved,  the  corroboration  is  suffi- 
cient.°*  Evidence  of  the  condition  in  which  an  accomplice 
was  found  on  the  day  after  an  assault  to  rob  is  admissible 
against  the  prisoner  after  there  is  evidence  tending  to  con- 
nect him  with  the  accomplice.'*" 

CONSPIRACY. 

A  conspiracy  is  an  agreement  between  two  or  more  per- 
sons to  do  an  unlawful  act,  or  to  do  a  lawful  act  unlaw- 
fully.**®  No  agreement,  except  to  commit  a  felony  upon  the 
person  of  another,  or  to  commit  arson,  or  burglary,  amounts 
to  a  conspiracy,  unless  some  act,  beside  such  agreement,  be 
done  to  effect  the  object  thereof,  by  one  or  more  of  the 
parties  to  such  agreement.^^  Co-conspirators  are  jointly  lia- 
ble for  the  acts  of  each  other  done  in  pursuance  of  the  con- 
spiracy."*  Where  several  join  in  a  crime  and  resisting 
arrest  therefor,  whatever  is  said  or  done  in  the  furtherance 

50  People  V.  Bolanger,  71  Cal.  17;    People  v.  Creegan,  121 

Cal.  558;   People  v.  Kraker,  72  Cal.  459. 
Bi  People  V.  Bonney,  98  Cal.  278.1 

62  People  V."  Barric,  49  Cal.  342;  People  v.  Bolanger,  71 
Cal.  17;  People  v.  Fong  Ching,  78  Cal.  169;  People  v. 
Farrell,  30  Cal.  316. 

63  People  V.  Dixon,  94  Cal.  255;  People  v.  Sternberg,  111 
Cal.  16;    People  v.  Wong  Chuey,   117  Cal.  628. 

64  People  V.  Hong  Tong,  85  Cal.  171;  People  v  Sternberg, 
111  Cal.  6;  People  v.  Armstrong,  114  Cal.  574;  People 
V.  Grundell.  75  Cal.  Z0±. 

65  People  V.  Ward,  77  Cal.  113. 

60  People  V.  Richards,  67  Cal.  412;   People  v.  Daniels,  105 

Cal.  267;   Penal  Code  182. 
67  Penal   Code  184. 
88  People  V.   Holmes,   118   Cal    445. 


EVIDENCE.  867 

of  the  common  design,  is  the  act  of  all,^"  and  where  all  are 
present  aiding  or  abetting  a  common  design,  the  act  of  one 
is  the  act  of  all.""  But  the  conspiracy  must  be  first  estab- 
lished by  independent  proof.®^  The  order  of  proof,  how- 
ever, is  in  the  discretion  of  the  court. "^  But  the  declarations 
of  a  co-conspirator  made  after  the  act  are  not  admissible.®^ 
Falsehood,  evasion  or  silence  of  conspirators  after  the  act 
is  not  admissible  in  evidence  under  any  circumstances.®* 
Tiiis  is  on  the  principle  that  the  acts  or  declarations  of  a  con- 
spirator to  be  admissible  in  evidence,  must  be  in  purs:uance 
or  furtherance  of  the  conspiracy. ''^  Acts  or  declarations  of 
conspirators  pending  or  prior  to  the  commission  of  the  crime 
are  admissible  against  all,""  even  in  the  absence  of  the 
accused."'  And  the  declarations  of  those  not  prosecuted 
are  equally  admissible  with  those  under  indictment.®^  After 
the  conspiracy  is  established',  any  act  or  declaration  in  the 
course  or  carrying  out  of  a  common  design  and  imtil  the 
crime  is  fully  consummated,  is  admissible. "°  And  for  the 
purpose  of  one  crime,  declarations  of  a  co-conspirator  are 
admissible  of  another  crime  committed  in  the  execution  of 
the  common  design,'"  but  under  an  indictment  for  arson 

59  People  V.  Pool,  27  Cal.  573. 

60  People  V.  Woody,  45  Cal.  299. 

61  People  V.   Compton,  123  Cal.   403. 

62  People  V.  Fehrenbach,  102  Cal.  394;  People  v.  Van  Horn, 
119   Cal.    330. 

63  People  V.  Dilwood,  94  Cal.  89;  People  v.  Oldham,  111 
Cal  653;  People  v.  Collum,  122  Cal.  188;  People  v. 
Prather,  120  Cal.  665;  People  v.  Holmes,  118  Cal.  458; 
People  V.  Opie,  123  Cal.  295;  People  v.  Moore,  45  Cal. 
19;  People  v.  Winters,  125  Cal.  331;  People  v.  Irwin, 
77  Cal.  495. 

61  People  V.  Irwin.  77  Cal.  494. 

65  People  v.!  Gregory,  120  Cal.  16;  People  v.  Geiger,  49  Cal 
643;  People  v.  Brown,  59  Cal.  352;  People  v.  Stevens', 
68  Cal.   115;    People  v.   Dixon,  94  Cal.   257. 

66  People  V.  Brown,  59  Cal.  346;  People -v.  Trim,  39  Cal. 
75;  People  v.  Lovren,  119  Cal.  88;  People  v.  Majors, 
65  Cal.  138;  People  v  Estrado,  49  Cal.  171;  People  v. 
Cotta,  49  Cal.   166. 

67  People  V.  Dixon,  94  Cal.  255. 

68  People  V.  Fehrenbach,  102  Cal.  394. 

69  People  V.  Rodley,  131  Cal.  240;  People  v.  Lovren,  119 
Cal.  88. 

70  People  V.  Collins,  64  Cal.  293;  People  v.  Dixon,  94  Cal. 
257 


368  CRIMINAL  LAW  AND  PROCEDURE. 

to  defraud,  the  acts  of  a  conspirator  in  an  attempt  to  collect 
insurance  are  not  admissible/^  The  testimony  of  declara- 
tions made  J3y  one  party  to  the  witness  are  not  disproved  by 
testimony  tthat  such  declarations  were  not  true.''^  A  con- 
spiracy may  he  established  by  circumstantial  evidence."" 
Indeed,  'it  is  not  often  thati  the  direct  facts  of  a  common 
design,  which  is  the  essence  of  a  conspiracy,  can  be  proved 
otherwise  than  by  the  establishment  of  independent  facts, 
bearing  more  or  less  remotely  upon  the  main  central  object, 
and  tending  to  convince  the  mind  reasonably  and  logically 
of  the  existemce  of  the  conspiracy.  If  it  be  proved  that  the 
defendants  pursued  by  tlieir  acts  the  same  object,  often  by 
the  same  means,  one  preforming  one  part  and  another 
anothe;r  part  of  the  same,  so  as^|  to,  complete  it,  with  a  view 
to  the  attainment  of  the  same  object,  the  jury  will  be  jus- 
tifieid  in  the  conclusion  that  they  were  engaged  in  a  con- 
spiracy to  effect  that  object.''*  The  fact  tliat  the  defendant 
was  standing  by  and  saw  a  crime  committed  is  not  evidence 
of  a  conspiracy,^''  but  the  resolutions  of  a  trade  union  are 
admissible  to  show  conspiracy  of  its  mfembets.'^^  The  con- 
spiracy must  always  be  satisfactorily  proved  before  the 
declarations  are  admissible,''*'^  and  error  in  the  admission  of 
such  testimony  is  not;  cured  by  instructing  the  jury  to  dis- 
regard it.^'' 

CONFESSIONS,    ADMISSIONS    AND   DECLARATIONS. 

A  confession,  in  criminal  law,  is  the  voluntary  declaration 
made,  by  a  person  v/ho  has  committed  a  crime,  to  another, 
of  the  agency  or  participation  he  had  in  the  same.  The 
word  "confession"  is  not  the  mere  equivalent  of  the  words 
"statement"   and   "declaration."^^     The   term   is   restricted 

71  People  V.  Trim,  39  Cal.  75. 

72  People  V.  Mitchell,  94  Cal.  550. 

73  People  V.  Lane,  101  Cal.  513;   People  v.  Bentley,  75  Cal. 
407;    People  v.   Dixon,  94  Cal.  257. 

74  People   V.   Bentley,   75   Cal.   409;    People   v.    Bentley,   77 
Cal.  7;   People  v.  Rodley,  131  Cal    240. 

75  People  V.  Stevens,  68  Cal.  113. 

,  76  People  V.  Holmes,  118  Cal.  444. 
76a  People  V.  Geiger,  49  Cal.  643. 

77  People  V.  Oldham,  111  Cal.  648. 

78  People   V.    Strong,    30    Cal.    158;    People   v.   Velarde,    5d 
Cal.   461. 


EVIDENCE.  369" 

to  acknowledgements  of  guilt.^"  It  does  not  include  stat^ 
ments  not  amounting  to  a  confession  of  guilt,*"  and  admis- 
sion of  facts  that  may  tend  to  show  guilt  is  not-  a  con- 
fession.®^ It  is  a  well  established  law  that  extrajudicial 
confessions  and  verbal  admissions  should  be  received  with 
caution,®^  and  viewed  with  distrust.®^  A  confession  alone, 
made  extrajudicially,  will  not  sustain  a  conviction.®*  But 
confessions  to  he,  admissible  at  all,  must  be  freely  and  volun- 
tarily made,®^  and  not  under  the  influence  of  threats,®"  or 
fear,®'^  or  induced  by  any  improper  means.®®  But  where  the 
confession  is  made  under  the  expectation  that  the  punish- 
ment will  be  lessened  under  a  plea  of  guilty,  it  is  admis- 
sible.®^ A  subsequent  confession  is  presumed  to  have  been 
made  and  influenced  by  the  same  hopes  and  fears  which 
induced  the  first  confession,""  and  it  is  an  open  question 
in  this  state  whether  the  inducement  must  be  made  by  one 
having  authority,  such  as  a  constable,  sheriff,  prosecutor 

79  People  V.  Parton,  49  Cal.  637;  People,  v.  Velarde,  59 
Cal.  461;  People  v.  Le  Roy,  65  Cal.  614;  People  v.  Am- 
merman,  118  Cal.  32. 

80  People  V.  Hickman,  113  Cal.  86;  People  v.  Miller,  122 
Cal.  87. 

81  People  V.  Hickman,  113  Cal  80;  People  v.  Ashmead, 
118  Cal.  509. 

82  People  V.  Sanders,  114  Cal.  216;  People  v.  Rodley,  131 
Cal.  240;  People  v.  Van  Horn,  119  Cal.  332;  People  v. 
Tarbox,  115  Cal.  65. 

83  People  V.  Sternberg,  111  Cal.  11;  Section  2061  Code  of 
Civil  Procedure. 

84  People  V.  Thrall,  50  Cal.  415;  People  v.  Simonsen,  107 
Cal.  348;  People  v.  Jones,  31  Cal.  565;  People  v.  Elliott, 
90  Cal.   586. 

85  People  V.  Hawes,  98  Cal.  648;  People  v.  Rodriguez,  10 
Cal.  51;  People  v.  Jim  Ti,  32  Cal.  60;  People  v.  Ro- 
dundo,  44  Cal.  538;  People  v.  Goldenson,  76  Cal.  350; 
People  V.  Barric,  49  Cal.  342;  People  v.  Thompson,  84 
Cal.  606;  People  v.  Fredericks,  106  Cal.  554;  People  v. 
Long,  43  Cal.  444;  People  v.  Johnson,  41  Cal.  452;  Peo- 
ple V.  Eckman,  72  Cal.  583;  People  v.  Eslabe,  127  Cal. 
243;  People  v.  Neary,  104  Cal.  373;  People  v.  Yeaton, 
75  Cal.   415. 

86  People   V.    Oliveria,   127    Cal.    377. 

87  People  V.  Rodriguez,    10   Cal.    51. 

88  People  V.  Long,  43  Cal.  444;  People  v.  Barric,  49  Cal. 
342;  People  v.  Thompson,  84  Cal.  606;  People  v.  Smith, 
15  Cal.    409. 

89  People  V.  Eckman,    72    Cal.    582. 

90  People  V.  Eckman,  72  Cal.  583. 

CRIMES--24 


370  CRIMINAL  LAW  AND  PROCBDURE. 

^nd  the  like."^  But  the  rule  that  confessions  must  be  volun- 
tary is  limited  to  confessions  of  guilt,  and  has  no  application 
to  admissions  of  fact  which  merely  tend  to  show  guilt,®- 
or  statements  which  show  innocence  made  to  an  officer.®'' 
Thus  statements  voluntarily  made  before  a  coroner's  jury 
are  admissible  at  the  trial,"*  and  so,  are  declarations  made 
two  years  before  the  act  as  to  what  he  would  do  in  certain 
cases.®"  Statements  made  by  defendant  in  respect  to  an 
inquiry  as  to  the  whereabouts  of  his  partner,  when  it  is 
shown  that  the  deceased  was  his  partner,  are  admissible.®' 
His  admission  of  a  fact  at  the  trial  also  may  be  read 
against  him,  and  the  admission  of  his  attorney  is  his  admis- 
sion, when  made  in  his  presence  without  objection.®''  The 
exclamation  of  the  wife  of  the  defendant  at  the  timie  of 
the  homicide,  if  made  in^  his  presence,  is  admissible  against 
him,®^  and  likewise,  conversations  with  the  defendant,  and 
false  explanation  given  by  him,®®,  and  voluntary  admissions 
in  civil  cases,  where  the  witness  was  not  in  custody,  and  not 
charged  with  the  crime,^  admissions  in  another  trial, ^  writ- 
ten confessions  at  the  preliminary  examination,  are  com- 
petent evidence  against  a  defendant  in  a  criminal  case.^ 
But  the  admission  of  a  writtein  confession  does  not  preclude 
oral  admissions.*  A(  confession  may  be  corroborated  by 
circumstances.'^    Thus  a  confession  of  larceny  and  the  find- 

91  People  V.  Smith,  15  Cal.  409. 

»2  People  V.  Parton,  49  Cal.  632;  People  v.Wreden,  59 
Cal.  396;  People  v.  Velarde,  59  Cal.  461;  People  v.  Le 
Roy,  65  Cal.  614;  People  v.  Hickman,  113  Cal.  86;  Peo- 
ple V.  Ammerman,  118  Cal.  32;  People  v.  Knowlton, 
122  Cal.  357;  People  v.  Young,  102  Cal.  411;  People  v 
Miller,  122  Cal.   84. 

93  People  V.  Ashmead,  118  Cal.  508. 

»*  People  V.  Martinez,  66  Cal.  278;  People  v.  Taylor,  59 
Cal.  640;  People  v.  Wheeler,  60  Cal.  590;  People  v. 
Herbert,  61  Cal.  544. 

»9  People  V.   Irwin,  77  Cal.   496. 

96  People  V.  Bowman,  81  Cal,  566. 

97  People  V.  Garcia,  25  Cal.  531. 

98  People  V.  Murphy,  45  Cal.  137. 

99  People  V.  Cuff,  122  Cal.  589. 

1  People  V.  Weiger,  lOd  Cal.  352. 

2  People  V.  Mitchell,  94  Cal.  550. 

3  People  V.  Cokahnour,  120  Cal'.  252. 
*  People  V.  Cokahnour,  120  Cal.  252. 
5  People  V.  Jones,  32  Cal.  81. 


EVIDENCE.  "  371 

ing  of  the  ,stolen  property  at  the  place  named,  in  the  con- 
fession renders  it  admissible,  and  takes  it  out  of  the  rule 
that  confessions  obtained  by  threats  are  not  admissible.  It 
precludes  a  possibility  of  the  testimony  being  false,  which 
is  the  ground  for  the  rule.®  While  the  witness  inay  testify 
to  finding  the  property  at  the  place  indicated,  he  may  not 
testify  that  the  defendant,  in  pointing  it  out,  said  he  had 
placed  it  there,  as  that  would  amount  to  a  confession  and 
would  be  within  the  rule.''  Declarations  to  be  admissible 
must  in  all  cases  be  connected  with  the  subject  of  the 
inquiry.^  Words  uttered  by  the  defendant  while  sleeping,' 
or  while  insane,  are  not  admissible  against  him,^°  but  con- 
fessions when  made  under  the  influence  of  liquor  furnished 
defendant  with  the  consent  of  the  officer,  if  uninfluenced 
by  anything  said  by  the  officer,  are  admissible.^*  A  volun- 
tary confession  by  a  defendant  who  is  held  in  custody  and 
not  taken  before  a  magistrate  within  twenty-four  hours  of 
his  arrest  is  not  rendered  inadmissible  thereby.*^  The  con- 
fession of  an  accomplice  after  the  commission  of  the  crime 
is  not  admissible  against  the  defendant.*'  If  the  confession 
be  voluntary,  it  is  admissible,  although 'made  with  the  pur- 
pose of  releasing  another  also  imprisoned.**  The  burden 
of  showing  the  confession  was  voluntary  is  on  the  prosecu- 
tion, who  seeks  to  introduce  it.*^  The  defendant  should 
object  to  the  admission  of  a  confession  on  the  ground  that 
it  was  not  shown  to  be  voluntary,  but  if  he  fails  to  object, 
and  it  is  admitted,  the  burden  is  then  on  him  to  show  that 
it  was  not  voluntarily  made.^*'     But  the  defense  may  show 

6  People  V.  Ramirez,  56  Cal.  533;  People  v.  Ah  Ki,  20  Cal. 
178;  People  v.  Ah  How,  34  Cal.  224;  People  v.  Hoy  Yen, 
34  Cal    176. 

7  People' V.  Hoy   Yen,   34   Cal.   176. 

8  People  V.  Irwin.   77  Cal.  494. 

0  People  V.   Robinson,   19   Cal.  41. 

10  People  V.  Wreden,  59  Cal.  392. 

11  People  V.  Ramirez,  56  Cal.  533. 

12  People   V.    Devine.    46    Cal.    46. 

13  People  V.  Aleck,  61  Cal.  137;  People  v.  Uwahah,  61  Cal, 
142;  People  v.  Gonzales,  71  Cal.  577;  People  v.  Irwin,' 
77  Cal.   505. 

14  People  V.  Smalling,  94  Cal.  112. 

15  People  V.  Castro,  125  Cal.  521. 

18  People  V.  Rodriguez,  10  Cal.  51.  '    i 


372  CRIMINAL  LAW  AND  PKOCEDURi:. 

that  it  was  not  voluntary  before  it  is  admitted. ^^  Statements 
made  in  an  action,  if  not  objected  to  and  answer  is  not 
refused  on  the  ground  that  they  would  incriminate,  are 
voluntarily  made.^®  The  admission  of  a  written  confession 
of  a  defendant,  is  without  prejudice  where  the  defendant 
himself  testifies  to  the  same  fact.^®  Declarations  and  state- 
ments of  the  defendant,  if  admitted,  should  be  given  in 
full.'"'  A  part  of  a  conversation  is  not  admissible,^^  the 
whole  of  the  confession  must  be  put  in,  if  a  part  is 
admitted.^^  The  jury  may  believe  a  confession  in  part  and 
disbelieve  in  part,  as  other  evidence.^^  Where  the  wdtness 
does  not  perfectly  understand  the  language  in  which  the 
confession  was  given,  he  cannot  testify  to  it.^*  If  the  state- 
ment has  a  qualification  not  fully  understood  which  is 
essential  to  a  full  understanding  of  the  confession,  it  is  not 
sufficient  to  convict.-^  Where  the  indictment  contains  two 
counts,  one  of  which  is  bad,  and  the  other  good,  and  a 
verdict  of  guilty  is  rendered  on  both,  declarations  made 
by  defendant  which  were  admissible  under  only  one  count 
renders  the  verdict  and  judgment  erroneous.^"  The  admis- 
sions of  the  district  attorney,  made  at  the  trial  to  the  effect 
that  a  witness  for  the  prosecution  was  indicted  for  receiv- 
ing stolen  property,  is  admissible  to  aflfect  the  credibility 
of  the  witness  and  is  binding  on  the  prosecution."  His 
admissions  as  to  the  acts  of  the  prosecuting  witness  made 
during  the  trial  are  as  relevant  as  if  proven  by  the  tes- 
timony.^®    The  admissibility  of  a  confession  is  a  question 

17  People  V.  Soto,  49  Cal.  67. 

18  People  V.  Weiger,  100  Cal.  352. 
IS  People  V.  Smalling,  94  Cal.  112. 

20  People   V.    Strong,   30   Cal.    151. 

21  People  V.  Keith,  50  Cal.  137;  People  v.  Irwin,  77  Cal. 
506;   People  v.  Tarbox,  115  Cal.  65. 

22  People  V.  Murphy,  39  Cal.  52;  People  v.  Navis,  3  Cal.  106. 

23  People  V.  Wyman,  15  Cal.  70;  People  v.  Strong,  30  Cal. 
158;   People  v.  Graham,  21  Cal.  261. 

24  People  V.  Gelabert,  39  Cal.  663;  People  v.  Tarbox,  115 
Cal.  65;  People  v.  Ah  Wee,  48  Cal.  238;  People  v.  Keith, 
50  Cal.  139. 

25  People  V.  Tarbox,  115  Cal    57. 

26  People  V.   Smith,   103   Cal.'  563. 

27  People  V.  Robles,  34  Cal.  591. 

28  People  V.   Tyler,   36  Cal,  522. 


EVIDENCB.  373 

for  the  court,^"  and  the  proper  foundation,  must  be  laid 
before  it  is  admitted.'"'  Declarations  by  the  defendant  in 
his  own  favor  are  not  admissible,^^  except  where  they  form 
a  part  of  the  res  gestae.^^  Neither  can  statements  by  the 
defendant  to  third  parties  be  proved  in  his  own  favor.^' 

CORPUS  DELICTI, 

The  corpus  delicti  involves  the  elements  of  the  crime;  and, 
in  order  to  prove  it,  all  of  the  elements  of  the  crime  must 
be  made  to  appear  before  the  defendant's  confession  is 
admissible  for  any  purpose.  The  confessionj'  cannot  be  used 
to  establish  any  necessary  element  of  the  commission  of 
the  crime.^*  The  confession  will  not  establish  the  corpus 
delicti,^^  nor  is  an  admission  sufficient  proof  of  the  corpus 
delicti  to  admit  a  confession.^"  It  must  be  established 
independent  of  the  evidence  which  merely  tends  to  connect 
the  defendant  with  the  crime. '^^  It  is  the  duty  of  tlie  court 
to  instruct  the  jury  as  to  the  independent  proof  necessary 
to  establish  the  corpus  delicti.^^  It  is  made  up  of  certain 
facts  forming  its  basis,  and  the  existence  of  criminal  agency 
as  the  -cause  of  them.^"  Generally  it  must  be  proven  by 
direct  testimony,  but  it  may  be  proven  by  circumstances 
or  inference.**'  Thus  in  a  charge  of  rape  under  the  age  of 
consent,  pregnancy  is  sufficient  proof  of  corpus  delicti  to 
admit  the  admission  of  the  defendant.*^  But  in  obtaining 
money  under  false  pretenses,  admissions  of  the  defendant 
are  not  sufficient  to  prove  the  corpus  delicti.*-    The  admis- 

29  People   V.   Ah   How,   34  Cal.    218. 

30  People   V.    Chaves,   122    Cal.    134. 

31  People  V.  Prather,   120  Cal.   660;    People  v    Chin  Hane, 
108  Cal.  597. 

32  People  V.   Kalkman,   72  Cal.   212. 

33  People  V.    Hill,   116   Cal.   562. 

34  People  V.  Simonsen,  107  Cal.  345. 

35  People   V.    Baird,   105   Cal.    126. 

36  People  V.   Harris,  114  Cal.   575. 

3T  People  V.  Tapia,  131  Cal.  647;  'People  v.  Thrall,  50  Cal. 
415. 

38  People  V.  Tapia,  131  Cal.  647. 

39  People  V.  Jones,  123  Cal.  65. 

40  People  V.  Alviso,  55  Cal.  230;    People  v.   Simonsen,  107 
Cal.    348. 

41  People  V.  Tarbox,  115  Cal.  57. 

42  People  V.  Simonsen,  107  Cal.  345. 


374  CRIMINAL  LAW  AND  PROCEDURE. 

sions  of  the  editorship  or  proprietorship  of  a  paper  in 
a  prosecution  for  criminal  libel  are  not  proof  of 
the  corpus  deliciti,  nor  do  the  defendant's  acts  or 
admissions  in  relation  thereto  amount  to  a  confession.*' 
Full  proof  of  the  body  of  the  crime  independently  of  a  con- 
fession, is  not  required,  however.  It  is  sufficient  if  the 
corroborative  facts  with  the  confession  show  the  existence 
of  the  offens€  of  which  the  defendant  is  guilty."  The 
evidence  of  the  corpus  delicti  need  not  be  of  conclusive 
character,  nor  should  it  connect  the  defendant  with  the 
crime  in  order  to  justify  its  admission.*''  The  admission 
in  evidence  of  the  confession  before  proof  of  the  corpus 
delicti  will  not  justify  a  reversal  where  the  defendant  is  not 
prejudiced.**  The  failure  to  require  preliminary  proof  that 
the  confession  was  voluntary  is  not  prejudicial,  where  cir- 
cumstances show  no  inducements  were  held  out.*^ 

ACTS  AND  DECLARATIONS  IN  THE  PRESENCE  OF  THE  ACCUSED. 

Conversations  in  the  presence  of  the  accused  are  not 
hearsay,**  and  are  admissible  against  him.*®  Likewise 
admissions  by  the  defendant  at  the  same  time  are  admis- 
sible,'**  but  only  so  far  as  the  defendant  asserted,^^  or  did 
not  controvert.^^  His  acquiescence  in  statements  by  others 
may  be  shown  to  establish  admissions  of  guilt.^^  It  is 
admitted  not  as  evidence  of  the  truth  of  the  facts  stated, 
but  to  show  the  conduct  of  the  defendant. °*    But  such  con- 

43  People  V.   Miller,  122   Cal.   84. 

44  People  V.  Jones,  123  Cal.  65. 

45  People  V.  Jones,  31  Cal.  566;  People  v.  Thrall,  50  Cal. 
415;   People  v.  Jones,  123  Cal.  65. 

46  People  V.  Jones,  123  Cal.  65. 

47  People  V.  Kamaunu,  110  Cal.  609. 

48  People  V.  Mayes,    113    Cal.    618. 

40  People  V.  Mayes,  113  Cal.  618;  People  v.  Young,  10& 
Cal.  8;  People  v.  Ah  Fook,  64  Cal.  380;  People  v.  Louie 
Foo,  112   Cal.   24. 

50  People  V.  Ah  Fook,  64  Cal.  380;  People  v.  x-ouie  Foo, 
112  Cal.  24. 

51  People  V  Estrado,  49  Cal.  171;  People  v.  A^  Yute,  53 
Cal.  615;' People  v.  Ah  Yute,  54  Cal.  90. 

52  People  V.  Mallon,  103  Cal.  513;  People  v.  Young,  lOS 
Cal.  13;   People  v.  Chin  Hane,  108  Cal.  603. 

63  People   V.    McCrea,    32    Cal.    98;    People   v.    Mallon,    103 

Cal.    514. 
54  People  V.  Ah  Yute,  53  Cal    614;   People  v.  Ah  Yute,  54 

Cal.  90;  People  v.  Louie  Foo,  112  Cal.  24. 


EVIDENCE.  375 

versation  must  be  connected  with  the  defendant,^®  as  those 
made  out  of  his  presence  are  not  admissible.^"  It  is  for  the 
jury  to  decide  whether  the  defendant  heard  and  understood 
the  same.^^  Declarations  of  the  guilt  of  the  defendant  are 
inadmissible  unless  they  be  dying  declarations.^^  And  if 
made  by  others,  even  in  the  presence  of  the  accused,  they 
are  not  admissible  in  his  favor.^**  Where  the  conversations 
are  connected  with  the  assault,  and  are  mentioned  on  the 
day  of  the  fight  they  are  admissible.""  Conversations  with 
a  Chinese  defendant,  who  is  sufficiently  acquainted  with 
English  to  understand  what  was  said,  are  admissible."^  The 
rule  as  to  part  conversations  not  being  admissible,  does  not 
apply  to  cases  where  the  witness  heard  only  a  part ;  he  may 
relate  what  he  heard,"^  and  where  it  was  in  two  languages 
it  may  be  proven  as  to  each  part  by  persons  understanding 
that  one  part  only."^  But  a  prosecuting  witness  cannot  tes- 
tify as  to  conversations  had  with  others  and  the  report  he 
made  to  the  chief  of  police."*  Acts  done  in  the  presence 
of  the  defendant  by  others  and  showing  a  conspiracy 
between  the  defendant  and  some  person,  are  admissible,  in 
larceny  cases,  although  no  conspiracy  to  steal  is  shown."'* 

CONDUCT    OF    THE    ACCUSED. 

The  flight  of  the  accused  is  a  circumstance  to  be  con- 
sidered by   the  jury,   with  other  evidence,^  to  show  con- 

55  People  V.  Powell,  87  Cal.  348. 

56  People  V.   Griffin,  52   Cal.  616. 

57  People  V.   Chin  Mook  Sow,  51   Cal.   597. 

58  People  V.  Hall,  94  Cal.  595. 

59  People  V.  Louie  Foo,  112  Cal.  17. 

60  People  v'.  Madden,  76  Cal.  521. 

61  People  V.   Cnin  Hane,  108  Cal.   597. 

62  People   V.    Daniels,   105    Cal.    262. 

63  People  V.  Ah  Wee,  48  Cal.  236;  People  v.  Keith,  50 
Cal.  139;  People  v.  Lee  Fat,  54  Cal.  530;  People  v.  Ir- 
win, 77  Cal.  506. 

64  People  V.  McNamara,  94  Cal.  510. 

65  People  V.  Wilson,  66  Cal.  370. 

1  People  V.  Choy  Ah  Sing,  84  Cal.  276;  People  v.  Forsythe, 
65  Cal.  101;  People  v.  Mayes,  66  Cal.  595;  People  v. 
Fine,  77  Cal.  147;  People  v.  Wong  Ah  Ngow,  54  Cal. 
151;  People  v  Mitchell,  55  Cal.  238;  People  v.  Messer- 
smith,  61  Cal.' 249;  People  v.  Welsh,  63  Cal.  168. 


376  CRIMINAL  LAW  AND  PROCEDURE. 

sciousness  of  guilt.^  It  may  be  shown  notwithstanding  it 
tends  to  prove  another  crime,^  but  there  is  no  presumption 
of  guilt  from  such  a  circumstance.*  The  arrest  of  the 
defendant  in  another  state  is  not  proof  that  he  fled  from 
justice.  He  may  have  gone  there  on  business  or  pleasure.' 
But  where  there  is  no  evidence  to  establish  a  guilty  flight 
and  no  claim  is  made  that  the  flight  was  guilty,  evidence 
in  rebuttal  of  guilt  is  inadmissible."  The  question  of  the 
guilt  of  the  flight  is  for  the  jury."  Pursuit  and  capture  of 
defendant  are  admissible,*  but  not  the  advice  of  third  per- 
sons to  the  defendant  to  fly;®  nor  letters  containing 
such  advice,  found  on  his  person.  The  bad  character  of 
the  society  writing  the  advice  is  not  admissible,  unless  the 
defendant  is  shown  to  be  a  member  thereof.^**  '  The  willing- 
ness of  the  accused  to  surrender  is  not  admissible,  where 
no  evidence  of  flight  is  offered,^"  and  a  failure  to  fly  by 
one  having  an  opportunity  is  not  proof  of  innocence.^^ 
Other  evidence  of  the  conduct  of  the  accused  is  admissible, 
such  as  a  breach  of  parole,^^  an  attempt  to  bribe  a  pros- 
ecuting witness,^*  and  concealment  and  disguise.^'  But  the 
conduct  of  the  accused  showing  his  objection  to  being  dis- 
graced by  arrest  cannot  prejudice  him.^°  An  offer  to  plead 
guilty  to  a  lesser  crime  may  be  shown,  when  it  was  not 
mduced  by  hope  or  fear."     The  silence  of  the  defendant 

2  People  V.  Bushton,  80  Cal.  160;  People  v.  Giancoli,  74 
Cal.  642;  People  v.  Strong,  46  Cal.  303;  People  v.  Welsh, 
63  Cal.  168. 

3  People  V.  Flannelly,  128  Cal.  83. 

••  People    V.    Wong    Ah    Ngow,  54    Cal     151;    People    v. 

Mitchell,   55   Cal.    238;    People  v.    Messersmith,   61   Cal. 

249;   People  v.  Welsh,  63  Cal.  168. 

5  People  V.  Page,  116  Cal.  386. 

6  People  V.  Clark,  84  Cal.  573. 

7  People  V.  Armstrong,  114  Cal.  570. 

8  People  V.  Fredericks,  106  Cal.  554. 

9  People  V.  Lee  Dick  Lung,  129  Cal.  491. 

10  People  V.  Lee  Dick  Lung,  129  Cal.  491. 

11  People  V.  Shaw,  111   Cal.   171. 

12  People  V.  Montgomery,  53  Cal.  576. 

13  People  V.  Ashmead,  118  Cal.  508. 

1*  People  V.  Choy  Ah   Sing,  84  Cal.  276;    People  v.  Wong 

Chuey,  117  Cal.  628. 
15  People  V.  Winthrop,   118  Cal.  85. 
i«  People  V.  Fitzpatrick,  80  Cal.  538. 
17  People  V.  Carroll,  92  Cal.  568. 


EVIDENCE.  377 

under  accusation  of  guilt,  cannot  be  proved  against  him; 
Dut  silence  in  not  explaining  the  possession  of  a  forged 
check,  testified  to  in  chief,  can  be  proved  on  cross-examin- 
ation.^® His  conduct  to  show  intent  is  admissible  both 
before  and  after  the  fact,  but  not  as  res  gestae}^  The 
evidence  of  the  flight  of  one  defendant  to  a  joint  crime  may 
be  introduced  against  the  others,  to  show  that  he  had  an 
opportunity  to  throw  away  the  fruits  of  the  crime.^" 
Evidence  may  be  introduced  to  the  effect  that  the  defend- 
ant, a  short  time  before  the  offense,  called  himself  by 
another  name,-^  but  the  accused  may,  at  all  times,  explain 
his  conduct.^^ 

PRIVILEGED   COMMUNICATION. 

There  are  particular  relations  in  which  it  is  the  policy 
of  the  law  to  encourage  confidence  and  preserve  it  inviolate. 
Therefore,  an  attorney  cannot  be  examined  as  a  witness 
without  the  consent  of  his  client,  as  to  any  communication 
made  by  the  client  to  him,  or  his  advice  given  thereon,  in 
the  course  of  professional  employment.^^  But  the  defend- 
ant may  be!  asked  whether  he  had  prepared  a  statement  and 
addressed  it  to  his  attorneys.^*  The  rule  as  to  a  privileged 
communication  betw^een  patient  and  physician  or  surgeon 
has  no  application  to  criminal  actions.'^  Neither  a  husband 
nor  wife  can  be  examined  in  a  criminal  action,  without  the 
consent  of  the  other  spouse,  as  to  any  communication  made 
by  one  to  the  other  during  the  marriage,  except  for  a  crime 
committed  by  one  against  the  other. -"^  The  testimony  can- 
not be  given  even  after  divorce.  No  disclosures  can  be 
forced  from  either  spouse,^^  but  the  testimony  of  the  wife 

18  People  V.  Dole,  122  Cal.  486 
18  People  V.   Welsh,   63   Cal.  167. 

20  People    V.    Collins,    48    Cal.    277;    People    v.    Welsh,    63 
Cal.    168. 

21  People  V.  Hope,  62  Cal.  291. 

22  People    V.    Williams,    17   Cal.    142;    People   v.    Scoggins, 
37  Cal.  687. 

23  People  V.  Atkinson,  40  Cal.   284. 

24  People  V.  Durrant,  116  Cal.  179. 

25  People    V.    West,    106    Cal.    89;    People    v.    Warner,    117 
Cal.  639;   People  v.  Lane,  101  Cal.  513. 

26  People  V.  Warner,   117   Cal.  637. 
2-  People  V    Mullings,  83  Cal.  138;    People  v.  Warner,  117 

Cal.    639.' 


878  CRIMINAL    LAW   AND    PROCEDURE. 

against  the  defendant  is  presumed  to  be  with  his  consent, 
where  he  afterwards  testifies  to  the  same  facts,*^  and  the 
error  in  permittinjj;  the  testimony  is  cured  thereby.'^® 

OTHER  OFFENSES. 

Evidence  connecting  the  defendant  with  other  oflfenses  is 
admissible,  if  it  tends  to  show  a  material  fact  or  motive  in 
the  easel  at  issue,^"  is  a  part  of  the  same  transaction,^^  tends 
to  connect  the  defendant  with  the  crime  charged,^^  or  is  con- 
nected with  the  crime  charged. ^^  But  the  connection  from 
which  the  crime  is  inferred  must  be  clear.^*  It  is  also  ad- 
missible to  show  motive,""^  intent  and  guilty  knowledge,^* 
and  to  rebut  the  claim  of  good  faith.-*'  Thus  in  forgery 
cases,  evidence  of  other  forgeries  may  be  introduced  about 

28  People  V.  Fultz,  109  Cal.  258. 

29  People  V.  Ketchum,   73   Cal.   635. 

30  People  V.  Rogers,  71  Cal.  565;  People  v.  Lane,  101  Cal. 
518;  People  v.  Smith,  106  Cal.  82;  People  v.  Craig,  111 
Cal.  460;  People  v.  Ebanks,  117  Cal  664;  People  v.  Wil- 
son, 117  Cal.  692;  People  v.  Walters,  98  Cal.  138;  Peo- 
ple V.   Winthrop,   118  Cal.  85. 

31  People  V.  Walters,  98  Cal.  138;  People  v.  Bidleman, 
104  Cal.  613;  People  v  Wilson,  117  Cal.  692;  People  v. 
Smith,  106  Cal.  82;  People  v.  Ebanks,  117  Cal.  663;  Peo- 
ple V.  Lee  Chuck,  66   Cal.   662. 

32  People  V.  McGilver,  67  Cal.  55;  People  v.  Rogers,  71 
Cal.  568;  People  v.  Lane,  101  Cal.  518;  People  v.  Smith, 
106  Cal.  82;   People  v.  Ebanks,  117  Cal.  664. 

33  People  V.  Cunningham,  66  Cal.  668;  People  v.  Walters, 
98  Cal.  142;  People  v.  Patterson,  102  Cal.  244;  People 
V.  Sanders,  114  Cal.  231;;  People  v.  Ebanks,  117  Cal.  664. 

34  People  V.  Lane,  101  Cal.  379;  People  v.  Tucker,  104  CaL 
443;    People  v.    Bidleman,   104   Cal.    613. 

35  People  V.  Lane,  101  Cal.  514;  People  v.  Tomlinson,  102 
Cal.  24;  People  v.  Fultz,  109  Cal.  262;  People  v.  Sanders, 
114  Cal.  231;  People  v.  Ebanks,  117  Cal.  664;  People  v. 
Wilson,   117  Cal.   688. 

36  People  V.  Bidleman,  104  Cal.  608;  People  v.  Ebanks, 
117  Cal.  664;  People  v  Wilson.  117  Cal.  688;  People 
V.  Walters,  98  Cal.  142;  People  v.  Lattimore,  86  Cal. 
402;  People  v.  Fehrenbach,  102  Cal.  394;  People  v. 
Baird,  105  Cal.  126;  People  v.  Cobler,  108  Cal.  538;  Peo- 
ple V.  Van  Ewan.  Ill  Cal.  144;  People  v.  Gray,  66  Cal. 
271;  People  v.  Bibby,  91  Cal.  476;  People  v  Shainwold, 
51  Cal.  468;  People  v.  Smith,  106  Cal.  81;  People  v, 
O'Brien,  66  Cal.  605;  People  v.  Cunningham,  66  Cal. 
671;  People  v.  Neyce,  86  Cal.  395. 

37  People  V.  Tomlinson,  102  Cal.  19;  People  v.  Fultz,  10^ 
Cal.  262. 


EVIDENCE.  379 

the  same  time  to  prove  guilty  knowledge,  although  the 
defendant  was  acquitted  thereon.^*  Evidence  of  other 
larcenies  committed  in  the  neighborhood  may  be  admitted 
to  show  why  a  witness  had  feigned  complicity  in  the 
offense.^"  And  prior  and  similar  embezzlements  against 
the  same  party  are  admissible.*^  In  robbery  cases  evidence 
showing  motive  is  admissible,  although  it  tends  to  show  a 
distinct  offense.*^  In  larceny  evidence  of  other  offenses 
is  admissible  where  the  property  stolen  is  found  with  that 
on  which  the  prosecution  is  had.*^  And  in  burglary  the 
possession  of  stolen  property  may  be  shown,  although  it 
also  appears  that  some  of  the  property  was  the  result  of 
another  crime.*^  To  show  the  pendency  of  a  case  in  which 
perjury  is  alleged  to  have  been  committed,  the  complaint  in 
that  case  is  admissible.**  In  an  assault  to  murder,  com- 
mitted in  an  attempt  to  escape  from  jail,  it  may  be  shown 
that  the  defendant  was  in  jail  for  the  purpose  of  showing 
motive,  although  it  tends  to  prove  another  distinct  offense. 
But,  yet,  it  is  connected  with  the  one  on  trial.*"*  Upon  a 
charge  of  rape  under  the  age  of  consent,  proof  of  another 
offense  is  not  generally  admissible,*"  but  it  may  be 
shown  to  explain  the  absence  of  outcry  and  laceration 
of  parts.*'  Evidence  otherwise  irrelevant  is  admissible 
when  part  of  a  narrative  material  to  the  issue,*®  but 
evidence  of  other  offenses  wholly  unconnected  with  the 
case  on  trial  are  not  admissible.*®  To  be  admissible, 
it  must  be  shown  that  it  is  in  some  way  connected  witn 

38  People  V.  Frank,    28    Cal.    507;    People    v.    Garnett,    2» 
Cal.  631;   People  v.  Bibby,  91  Cal.  476. 

39  People  V.  Bolanger,   71   Cal.   17. 

40  People  V.  Neyce,  86  Cal.   393. 

41  People  V.  Gleason,   127   Cal.   323. 

42  People  V.  Robles,  34  Cal.  591;   People  v.  Lopez,   59  Cal. 
363;    People  v.  Cunningham,  66  Cal.  669. 

43  People  V.  Sears,    119    Cal.    267. 

44  People  V.  Lee  Fat,  54  Cal.   527. 

45  People  V.  Valliere,    123    Cal.    576;    People    v.    Lane,    101 
Cal.  513. 

46  People  V.  Ranged,   112   Cal.   669. 

47  People  V.  Fultz,  109  Cal.  258. 

48  People  V.  Kuches,    120    Cal.    566;    People   v.    Lynch,    122 
Cal.   503. 

49  People  V.  Cuff,  122  Cal.  589. 


^80  CRIMINAL  LAW  AND  PROCEDURE. 

the  case  on  trial,  and  a  part  of  the  same  tran- 
saction or  of  the  res  gestae.^°  In  incest  cases,  other  dis- 
tinct offenses  are  admissible,'^^  but  the  previous  prostitution 
of  a  daughter,  cannot  be  shown  against  the  defendant,  to 
prove'  that  he  Hved  off  her  earnings  as  such."^^  Evidence  of 
another  crime,  which  is  only  incidental  to  the  rebuttal  of 
material  evidence  of  the  defendant,  is  admissible."^  Thus  a 
magistrate  may  testify  that  a  person  who  had  been  charged 
with  an  assault  to  murder  the  defendant  was  found  not 
guilty  on  the  same  day  that  the  deceased  was  killed,'^*  and 
the  declarations  of  a  co-defendant  as  to  other  offenses  are 
inadmissible. ^'^  The  declarations  of  the  defendant  as  to 
other  offenses  than  the  one  for  which  he  is  held  for  trial 
are  inadmissible,  except  so  far  as  they  refer  to  a  general 
scheme  to  commit  the  particular  crime  with  which  he  is 
charged.""  The  judgment  of  the  conviction  of  a  person 
jointly  indicted  with  the  accused,  is  not  admissible  in  evi- 
dence against  him,  for  any  purpose.""  In  forgeries  the 
evidence  of  other  offenses  is  not  admissible,  unless  there 
is  evidence  tending  to  connect  the  defendant  therewith,  and 
the  finding  of  a  check  upon  his  desk  is  not  sufficient 
evidence."*  The  corpus  delicti  must  be  established  before 
other  forgeries  may  be  shown."®  In  such  cases  it  cannot 
be  admitted  to  show  guilty  knowledge  unless  it  appears 
that  the  check  described  in  the  indictment  was  itself  a  for- 
gery.®" Evidence  of  distinct  offenses  which  are  not  con- 
nected with  the  case  on  trial,  or  in  no  way  tend  to  prove 
any  of  the  issues  therein,  or  to  establish  intent  or  guilty 
;knowledge,  etc.,  are  not  admissible.''^     Thus  it  cannot  be 

50  People  V.  Teixeria,   123   Cal.   297;    People  v.   Wong  Ark, 
96  Cal.  129;   People  v.  Lane,  100  Cal.  379. 

51  People  V.  Patterson,  102  Cal.  239. 

52  People  V.  Beniot,   97   Cal.   249. 

53  People  V.  Piggott,   126  Cal.  509. 

54  People  V.  Chin   Hane,   108   Cal.   597. 

55  People  V.  Williams,  127  Cal.  212. 
50  People  V.  Dixon,  94  Cal.  255. 

57  People  V.  Bearss,   10   Cal.   68. 

58  People  V.  Bird,  124   Cal.   32. 

50  People  V.  Whiteman,  114  Cal.  338. 
60  People  V.  Whiteman,   114   Cal.    338. 

ei  People  v.  Lynch,  122  Cal.  501;    People  v.  Tyler,  36  Cal. 
522;  People  v.  Vidal,  121  Cal.  221;  People  v.  Hurley,  126 


EVIDENCE.  381 

introduced  to  prove  larceny,"^  unless  there  is  a  connection' 
between  the  offenses  f'-^  nor  to  prove  guilt,^*  nor  to  impeach 
a  witness,"^  as  the  testimony  cannot  extend  to  collateral 
matters.®'*  But  it  may  be  admissible  as  explanatory  of  the 
prior  offense.^®  The  fact  of  defendant's  previous  arrest 
cannot  be  shown  to  prove  guilt  of  another  crime,®'^  nor  the 
testimony  of  an  officer  that  he  had  been  searching  for 
defendant  for  other  offenses.®^  The  evidence  of  subsequent 
offenses  is  not  admissible."^ 

CHARACTER. 

Evidence  of  the  character  of  the  defendant  is  to  be 
considered  in  connection  with  the  facts  proven  to  establish 
his  guilt  or  innocence.''*'  Good  character  is  a  circumstance 
that  may  tend  to  rebut  the  presumption  of  evil  intent,"^ 
and  is  to  be  considered  in  determining  guilt.'^'^  The  good 
character  of  the  accused,  when  proven,  is  itself  a  fact  of 
the  case.  It  is  a  circumstance  tending  in  a  greater  or  less 
degree  to  establish  his  innocence."^  In  murder  cases  it  may 
be  considered  for  the  purpose  of  determining  who  fired 
the  first  shot.''*  But  bad  character  of  the  defendant  is 
inadmissible  against  him,''^  unless  the  defendant  begins  the 

Cal.  351;   People  v.  Lane,  100  Cal.  385;    People  v.  Stew- 
art, 85  Cal.  174;   People  v.  Elliott,  119  Cal.  594;    People 
V.   Smith,   106   Cal.   81;    People  v.   McNutt,   64  Cal.   llf?; 
People  V.  Valliere,  127  Cal.  65. 
02  People  V.  Hartman,    62    Cal.   562. 

63  People  V.  Cunningham,  66  Cal.  672;  People  v.  Smith,  106 
Cal.   81. 

64  People  V.  Jones,  31  Cal.  566;   People  v.  Willard,  92  Cal. 
482;   People  v.   Sanders,  114  Cal.  230. 

65  People  V.  O'Brien,  96   Cal.   171. 
o-'-a  People  V.  Tyler,  36  Cal.  529. 

66  People  V.  Lenon,  79  Cal.   625. 

67  People  V.  McCauley,    45    Cal.    146. 

68  People  V.  Vidal,    121    Cal.    221. 

69  People  V.  Baird,  104  Cal.   462;   People  v.   Lane,  100  Cal.. 
379. 

70  People  V.  Shepardson,    49    Cal.    631;    People    v.    Doggett, 
62   Cal.    29;    People  v.    Raina,   45   Cal.    292. 

71  People  V.  Casey,  53  Cal.  360. 

72  People  V.  Bowman,    81   Cal.    566. 

73  People  V.  Ashe,    44    Cal.    291;   People  v.  Raina,  45  Cal. 
292;   People  v.  Shepardson,  49  Cal.  629, 

74  People  V.  Soto,   63   Cal.   165. 

75  People  V.  Dye,   75   Cal.   108;    People  v.   Wallace,   89   Cal.. 
162;    People  v.  Webster,  89  Cal.  573. 


382  CRIMINAL  LAW  AND  PROCEDURE. 

inquiry. ''"  It  is  not  a  step  in  proof  of  guilt/''  and  cannot 
be  shown  by  the  prosecution  in  its  case  in  chief,''®  but  it 
may  be  inquired  into  on  cross-examination.''*  The  bad 
character  of  a  deceased  person  is  not  a  legitimate  subject 
of  inquiry ,*°  except  in  cases  of  homicide  where  the  accused 
relies  on  self-defense.*^  Evidence  to  sustain  his  character 
for  peace  and  quiet  cannot  be  introduced  until  it  is 
attacked.^*  Good  character  will  not  warrant  an  acquittal,  if 
the  defendant  is  otherwise  shown  to  be  guilty.'*  The  jury 
may  find  a  verdict  of  guilty  notwithstanding  the  good 
character  of  the  defendant.®*  Good  character,  like  all  other 
facts,  should  be  proven  by  competent  evidence.®**  A  dis- 
charge certificate  from  the  army  is  not  evidence  of  good 
character,®*'  neither  is  a  letter  of  recommendation.®^  A 
person  who  has  never  heard  the  reputation  of  the  defend- 
ant discussed  cannot  testify  as  to  it.®®  Immoral  conduct  of 
the  accused  cannot  be  admitted  to  prove  bad  character.®^ 
The  law  presumes  for  the  defendant  a  character  of  ordinary 
fairness,^"  and  in  the  absence  of  evidence,  he  is  not  required 
to  offer  witnesses  in  support  of  good  character,  but  has  a 
right  to  have  the  jury  assume  his  character  unimpeached.®^ 
Good  character  can  be  considered  only  in  reference  to  the 

78  People  V.  Fair,  43  Cal.  137;  People  v.  Wallace,  89  Cal. 
162. 

77  People  V.  Whiteman,  114  Cal.   338. 

78  People  V.  Arlington,  123  Cal.  356;  People  v.  Denby.  108 
Cal.  56;  People  v.  Meyer,  75  Cal.  386;  People  v  Chin 
Mook  Sow,  51  Cal.  597. 

79  People  V.  Gordon,  103  Cal.  568. 

80  People  V.  Anderson,  39  Cal.  703;  People  v.  Bezy,  67  Cal. 
224;    People   v.   Powell,   87   Cal.   362. 

81  People  V.  Edwards,   41   Cal.   640. 

82  People  V.  Powell,  87  Cal.  362. 

83  People  V.  Samsels,  66  Cal.  99;  People  t.  Kalkman,  72 
Cal.  217. 

84  People  V.  Mitchell,  129  Cal.  584;  P^ple  v.  Smith,  59 
Cal.  602. 

85  People  V.  Velarde,  59  Cal.  457. 

86  People  V.  Eckman,  72  Cal.   582. 

87  People  V.  Duchow,    87   Cal.   113. 

88  People  V.  Moan,  65  Cal.  532. 

89  People  V.  Wallace,  89   Cal.  158. 

90  People  V.  Fair,  43  Cal.  137;  People  v.  Johnson,  61  Cal. 
142. 

31  People  V.  Gleason,   122   Cal.    370. 


EVIDENCE.  383 

whole  case,  and  not  to  any  isolated  fact  of  the  case."^  It 
should  be  restricted  to  the  trait  of  the  character  in  issue.®^ 
The  defendant  may  always  prove  good  character,**  but  such 
evidence  is  not  conclusive  of  his  innocence,  even  in  cases 
otherwise  doubtful  upon  the  evidence.^^  The  admission  of 
counsel  that  any  number  of  witnesses  will  testify  to  the 
bad  reputation  of  the  deceased  for  peace  and  quiet,  is  equi- 
valent to  an  admission  that  his  reputation  was  bad.®* 

HEARSAY   EVIDENCE. 

A  witness  can  testify  of  those  facts  only  which  he  knows 
of  his  own  knowledge;  that  is,  which  are  derived  from  his 
own  perceptions,  except  in  those  few  express  cases  in  which 
his  opinions  or  inferences,  or  the  declarations  of  others,  are 
admissible.^  Hearsav  evidence  includes  statements  in  a 
letter  found  in  defendant's  possession,-  and  statements  of 
the  person  robbed,  as  to  the  character  and  description  of 
the  robber;^  statements  made  by  persons  to  a  witness  as  to 
the  place  where  the  body  lay,*  the  testimony  of  the  arrest- 
ing officer  as  to  the  description  of  the  defendant  given  by 
the  prosecuting  witness,^  and  entries  in  a  register  kept  at 
the  station  of  a  railroad  company  showing  the  time  of  the 
arrival  and  departure  of  trains.** 

EXPERIMENTS. 

The  admission  of  evidence  of  experiments  made  by  a 

92  People  V.  Milgate,  5  Cal.  127;  People  v.  Roberts,  6  Cal. 
217. 

93  People  V.  Josephs,   7   Cal.   129. 

94  People  V.  Ashe,  44  Cal.  288;  People  v.  Bell,  49  Cal. 
485;  People  v.  Fenwick,  45  Cal.  288;  People  v.  Raina,  45 
Cal.  293;  People  v.  Shepardson,  49  Cal.  631;  People  v. 
Casey,  53  Cal.  361;  People  v.  Smith,  59  Cal-  607;  Peo- 
ple V.   Doggett,    62   Cal.   29. 

95  People  V.  Streuber,   121   Cal.    431. 

96  People  V.  Shaver,   120   Cal.   354. 

1  Sec.    1845    Code    of    Civil    Procedure. 

2  People  V.  Colburn,   105  Cal.   648. 

3  People  V.  McCrea,  32  Cal.  98;   People  v.  McLaughlin,  44 
Cal.    439. 

*  People  V.  Hill,   123   Cal.    571. 

5  People  v.  Johnson,    91    Cal.    265;    People   v.    McNamara, 
94  Cal.  514. 

6  People  V.  Mitchell,  94  Cal.  550;   People  v.  Wong  Chuey, 
117  Cal.  627. 


( 

384  CRIMINAL  LAW  AND  PROCEDURE.* 

witness  is  entirely  within  the  discretion  of  the  court.''  The 
court  may  permit  experiments  applicable  to  facts  in  proof  to 
be  made  in  the  presence  of  the  jury.^  Evidence  of  exper- 
iments as  to  the  hearing  of  sounds  under  certain  conditions, 
and  the  result  thereof,  is  admissible  in  rebuttal.® 

.      EXPERT   EVIDENCE. 

There  are  certain  matters  upon  which  the  law  allows 
experts,  or  men  versed  therein,  to  give  opinion.  For 
instance,  an  expert  may,  in  a  forgery  case,  testify  as  to  the 
means  of  removing  writing,  and  a  non-expert  may  testify 
to  the  eflfect  of  putting  acid  on  a  check.^°  An  opinion  may 
also  be  given  as  to  cattle-brands,^^  as  to  the  texture  of 
cloth,^^  and  the  ground  upon  which  the  opinion  is  based  may 
be  stated.^^  But  the  character  of  a  house  is  a  question  of 
fact,  not  of  opinion,^*  and  a  witness  cannot  express  an 
opinion  as  to  any  fact  to  be  passed  upon  by  the  jury.^* 
Thus  expert  testimony  is  not  admissible  to  show  whether 
a  cartridge  had  been  in  aj  certain  pistol,^®  as  to  the  eyesight 
of  two  persons  relatively,  unless  the  eyes  have  been  tested 
and  examined;^''  as  to  the  meaning  of  a  word  used  by 
another,^^  or  as  to  what  the  witness  judged  from  what  he 
saw.^®  Nor  is  expert  opinion  of  the  innocence  of  the 
defendant  admissible,  based  upon  the  fact  that  the  defend- 
ant, while  under  the  influence  of  hypnotism,  denied  his 
guilt.  ^"  Expert  testimony  as  to  the  character  and  description 
of  a  game  is  not  admissible.^^  One  witness  cannot  testify 
that  a  series  of  acts   which   were  testified  io  by  another 

7  People  V.  Woon  Tuck  Wo,  120  Cal.  294. 

8  People  V.  Levine,  85  Cal.   39. 

0  People  V.  Phelan,  123  Cal.   551. 

10  People  V.  Brotherton,   47   Cal.   388. 

11  People  V.  Fitzpatrlck,  80  Cal.  538. 

12  People  V.  Lovren,  119  Cal.  88. 

13  People  V.  Bird,  124"  Cal.  32. 

14  People  V.  Lock  Wing,   61  Cal.   380. 

15  People  V.  Ah   Own,   85  Cal.   580. 

16  People  V.  Mitchell,  94  Cal.  550. 

17  People  V.  Marseiler,  70  Cal.  98. 

18  People  V,  Moan,    65    Cal.    532. 
10  People  V.  Elliott,  119  Cal.   593. 

20  People  V.  Ebanks,  117  Cal.  652. 

21  People  V.  Rose,  85  Cal.  378;  People  v.  Shaugnessey,  110 
Cal.  601;   People  v.  Gosset,  93  Cal.  641. 


EVIDENCE.  385- 

witness,  constituted  a  particular  game.^'^  These  are  ques- 
tions of  law  of  which  the  court  takes  judicial  notice.^^  The 
jury  need  not  be  cautioned  against  expert  evidence.^*  A 
person  who  is  not  an  expert  may  give  an  opinion  as  to 
whether  or  not  the  defendant,  from  appearances,  was  intox- 
icated.^"^ 

DEPOSITIONS    TAKEN     AT    THE    PRELIMINARY    EXAMINATION. 

The  evidence  of  a  witness  given  at  a  former  trial  is  not 
admissible,^"  but  the  testimony  at  the  preliminary  exam- 
ination may  be  read  where  the  witness  is  dead  ;^^  but  the 
death  must  be  proved  as  any  other  fact,  by  relevant  and 
competent  evidence,  and  cannot  be  shown  by  ex  parte  affi- 
davits.^® It  may  be  read  also  when  it  is  shown  that  the 
witness  cannot  be  found  in  the  state,  after  due  diligence.*® 
But  a  deposition  taken  on  a  preliminary  examination  for 
another  charge,  is  not  admissible  for  the  offense  on  trial 
by  reason  of  the  death  of  the  witness.^"  It  is  not  admissible 
except  where  the  witness  is  dead,  insane  or  cannot,  with 
due  diligence  be  found  in  the  state.^^  Where  an  officer 
who  has  been  requested  to  serve  a  subpoena  on  a  witness, 
states  that  after  following  every  source  of  inquiry,  he  was 
informed  by  various  persons  acquainted  with  the  witness 
that  he  had  left  the  state,  and  could  not  tell  when  he  would 
return ;  that  it  was  said  by  one  person  that  he  was  liable 
to  return  upon  business  at  any  time,  but  after  further  efforts 
to  locate  him,  the  officer  could  not  find  him,  is  a  sufficient 

22  People  V.  Gosset,  93   Cal.   641. 

23  People  V.  Carroll.    80    Cal.    153. 

24  People  V.  Smith,   106  Cal.   73. 

25  People  V.  Sehorn,  116  Cal.  503;  People  v.  Monteith,  7S 
Cal.  7;  Ellen  v.  Lewison,  88  Cal.  260;  San  Diego  Co. 
V.   Neale,    78   Cal.   77. 

26  People  V.  Gordon,  99  Cal.  227;  People  v.  Gardner,  98 
Cal.  127;  People  v.  Chong  Ah  Chue,  57  Cal.  567;  Peo- 
ple V.  Qurise,  59  Cal.  344. 

27  People  V.  Douglass,   100   Cal.   1. 

28  People  V.  Plyler,  126  Cal.  379. 

20  People  V.  Reilly,  106  Cal.  648;  People  v.  Sierp.  116  Cal. 
249;  People  v.  Cady,  117  Cal.  10;  People  v.  Nelson,  85 
Cal.  421;  People  v.  Oiler,  66  Cal.  101;  People  v.  Chin 
Hane,   108   Cal.   597. 

30  People  V.  Brennan,    121    Cal.    495. 

31  People  V.  Bojorquez,    55    Cal.    463. 

CRIMES--25 


■^ 


CRIMINAL  LAW  AND  PRCXJEDURE. 


sshovving  of  absence  from  the  state.^^  Such  depositions  are 
^admissible  also  when  taken  through  an  interpreter,^'  but 
"When  so  taken  the  interpreter  must  be  present  at  the  trial 
and  testify.^*  They  are  not  admissible,  however,  unless 
they  are  taken  and  certified  as  required  by  the  code,^°  but 
a  substantial  compliance  with  the  statute  is  all  that  is 
required.'"  A  deposition,  taken  before  the  magistrate,  of 
a  witness  who  is  unable  to  procure  sureties  pending  an 
information  for  a  void  commitment  which  is  set  aside,  can- 
not be  read  in  evidence  on  the  second  prosecution.''^  The 
evidence  of  a  preliminary  examination  may  be  read  at  the 
trial,  if  not  objected  to.'®  Part  of  the  evidence  being  intro- 
duced by  the  defendant,  the  people  are  entitled  to  the 
remainder  explaining  it.'"  The  testimony  of  the  accused 
may  be  used  against  him  on  the  trial  when  freely  and 
voluntarily  given.*"  It  cannot  be  objected  to  on  the  ground 
that  the  reporter  had  failed  to  file  his  notes.*^  It  is  sufR- 
cient  if  they  be  filed  before  th^  trial  is  ended.** 

reporter's  notes. 

The   reporter's  notes   and   the   testimony  based   thereon 

is  incompetent  to  prove  thet  testimony  of  a  witness  given  in 

a  foreign  language,  through  an  interpreter,*'  and  are  not 

admissible  in  evidence  to  prove  testimony  of  a  witness  given 

at  a  former  trial,**  but  may  be  used  to  refresh  the  memory 

32  People  V.  Mclntyre,    127   Cal.    423. 
83  People  V.  Sierp,  116  Cal.   249. 

34  People  V.  Cady,  117  Cal.  10. 

35  People  V.  Morine,  54  Cal.  575;  People  v.  Mitchell,  64 
Cal.  87;  People  v.  Ward,  105  .Cal.  657;  People  v.  Riley, 
75  Cal.  101;  Willard  v.  Superior  Court,  82  Cal.  456; 
People  V.   Cunningham,    66   Cal.    677. 

36  People  V.  Mclntyre,  127  Cal.  423. 

37  People  V.  Thompson,  84  Cal.  598. 

38  People  V.  Cunningham,  66  Cal.  668;  Reid  v.  Reid,  73 
Cal.   207;    People  v.  Carty,  77  Cal.  216. 

30  People  V.  Arthur,    93    Cal.    536. 

40  People  V.  Keller,  47  Cal.  125;  People  v.  O'Brien,  66  Cal. 
605. 

41  People  V.  Eslabe,  127  Cal.  243. 

42  People  V.  Grundell,  75  Cal.  301. 

43  People  V.  Ah  Yute,  56  Cal.  119;  People  v.  Sierp,  116  Cal. 
250;  People  v.  Lee  Ah  Yute,  60  Cal.  96;  Reid  v.  Reid, 
73    Cal.    207. 

44  People  V.  Qurlse,  59  Cal.  343;  People  v.  Gardner,  98  Cal. 
132;  People  v.  Gordon,  99  Cal.  233. 


EVIDENCE.  387 

of  the  witness.*''  The  reporter  may  testify  from  his  notes 
as  to  testimony  in  a  former  trial,  subject  to  cross-exam- 
ination.*® The  stenographer  at  the  preliminary  exam- 
ination need  not  be  sworn, *^  but  unless  properly  authenti- 
cated a  transcript  of  his  notes  is  not  admissible.  The  court 
may,  however,  allow  him  to  refresh  his  memory  from  his 
notes  and  testify  orally  as  to  what  occurred  at  the  exam- 
ination.** The  reporter's  notes  are  admissible,  although  not 
certified,  if  sworn  to,  for  the  purpose  of  impeachment.*^ 
A  transcription  of  the  notes  of  the  testimony  at  a  prelim- 
inary, properly  certified,  is  admissible,  like  depositions  upon 
the  same  footing.  ^^ 

PRESUMPTIONS. 

The  identity  of  the  person  is  presumed  from  the  identity 
of  the  name,  and  is  prima  facie  evidence  thereof.^^  The 
presumption  of  innocence  does  not  cease  on  the  submission 
of  a  cause  to  the  jury,"-  but  continues  all  through  the  trial 
until  the  jury  have  reached  a  verdict  of  conviction. ^^  It 
prevails  over  a  presumption  of  the  continuances  of  a  fact 
once  shown  to  exist,^*  over  the  presumption  of  the  contin- 
uance of  life,^°  of  the  continuance  of  marriage,^®  and  of 
knowledge. °^  It  is  the  only  presumption  allowed  in  crim- 
inal cases.^*    It  is  never  overcome  by  another  presumption. 

45  Burbank  v.  Dennis,  101  Cal.  104;  People  v.  Gordon,  99 
Cal.  233;  People  v.  Gardner,  98  Cal.  132;  People  v. 
Ammerman,  118  Cal.  23;    People  v.  Carty,  77  Cal.  213. 

46  People  V.  Lem  You,  97  Cal.   224. 

47  People  V.  Riley,   75    Cal.    98. 

48  People  V.  Carty,  77  Cal.  213;  People  v.  Ward,  105  Cal. 
658. 

40  People  V.  Morine,  61  Cal.  367. 

50  People  V.  Grundell,  75  Cal.  301. 

51  People  V.  De  Winton,  113  Cal.  403;  People  v.  Rolfe,  61 
Cal.  540;  People  v.  Chin  Mook  Sow,  51  Caf.  600;  People 
V.   Riley,   75  Cal.  98;    People  v.   Thompson,  28   Cal.   215. 

52  People  V.  McNamara,  9.  Cal.  509;  People  v.  O'Brien,  106 
Cal.  105;   People  v.  Winthrop,  118  Cal.  92. 

53  People  V.  Arlington,  131  Cal.  231;  People  v.  O'Brien,  106 
Cal.  104;   People  v.  McNamara,  94  Cal.  509. 

34  People  V.  Strassman,  112  Cal.  683. 
55  People  V.  Feilen,   58  Cal.   218. 
58  People  V.  Stokes,  71  Cal.  263. 

57  People  V.  Blackman,   127   Cal.    248. 

58  People  V.  Douglass,  100  Cal.  1;  People  v.  btrassman, 
112  Cal.  687. 


388  CRIMINAL  LAW  AND  PROCEDURE. 

Two  presumptions  cannot  stand  together.'^''  No  presump- 
tion is  raised  against  the  defendant  by  the  law,  if  he  does 
not  attempt  to  explain  suspicious  circumstances.®"  But  the 
consent  of  the  husband  to  the  wife's  remaining  in  a  house 
of  prostitution  is  presumed  from  his  failure  to  object  after 
knowledge."^  For  all  purposes  except  that  of  the  trial  of 
the  defendant,  his  indictment  by  the  grand  jury  raises  a 
presumption  of  guilt,  as  in  fixing  the  bail,  the  defendant 
is  presumed  to  be  guilty."- 

JUDICIAL    NOTICE. 

The  Court  will  take  judicial  notice  of  a  change  of  judges," 
of  the  time  of  the  rising  of  the  moon,"^  and  of  the  sun,  and 
may  resort  to  an  almanac  to  determine  such  questions." 
It  takes  knowledge  of  the  facts  which  constitute  a  banking 
game,®'  but  it  will  not  take  judicial  notice  that  a  "pool" 
necessarily  involves  gambling  for  money.®^  The  knowledge 
of  a  trial  judge  extends  to  the  fact  that  he  admonished  the 
bailiff,  and  he  may  refuse  to  be  sworn  to  testify  on  such  a 
point.®* 

BURDEN    OF    PROOF, 

The  burden  of  proof  is  on  the  prosecution  throughout  the 
trial  to  prove  the  criminal  acts  beyond  a  reasonable  doubt,®* 
but  the  doctrine  of  reasonable  doubt  does  not  apply  where 
the  defense  is  insanity.    The  burden  of  proof  is  there  on  the 

59  People  V.  Sanders,  114  Cal.  216;  People  v.  O'Brien,  130 
Cal.  1;  People  v.  Douglass,  100  Cal.  1;  People  v.  Strass- 
man,  112  Cal.  687;  People  v.  Krusick,  93  Cal.  79;  Peo- 
ple V.  Roderigas.  49  Cal.  11. 

60  People  V.  Streuber,   121   Cal.   431. 

61  People  V.  Bosquet,  116  Cal.  75. 

«2  Ex  parte  Ryan,  44  Cal.  555;    Ex  parte  Duncan,  53  Cal. 

411;    In  re  Williams,  82  Cal.  183. 
63  People  V.  Ebanks,  120  Cal.  626. 
04  People  V.  Mayes,    113    Cal.    618. 

65  People  V.  Chee  Kee,   61   Cal.   404. 

66  People  V.  Carroll,  80  Cal.  153;  People  v.  Rose,  85  Cal. 
382;  People  v.  Cosset,  93  Cal.  645. 

67  Ex  parte  Bernert,  62  Cal.  531. 

68  People  V.  Azoff,   105  Cal.  632. 

«9  People  V.  Rodrigo,  69  Cal.  601;  People  v.  Knapp,  71 
Cal.  9;  People  v.  Gordon,  88  Cal.  423. 


EVIDENCE.  389 

defendant  and  he  must,  like  other  affirmative  offenses,  es- 
tabHsh  it  by  a  preponderance  of  evidence.  The  law  presumes 
sanity.''"  Proof  beyond  a  reasonable  doubt  is  necessary  to 
establish  any  fact  against  the  accused,''^  but  a  mere  pre- 
ponderance of  proof  is  sufficient  to  establish  a  fact  in  his 
favor.'^^  The  jury  must  be  satisfied  beyond  a  reasonable 
doubt  and  for  a  certainty  of  the  guilt  of  the  defendant;  it 
cannot  act  on  probabilities.^''  The  burden  of  proof  does  not 
shift  to  the  defendant  to  deprive  him  of  the  doctrine  of 
reasonable  doubt,^*  but  in  homicide  cases  where  the  com- 
mission of  the  homicide  by  the  defendant  is  proved,  the 
burden  of  proving  circumstances  of  mitigation,  or  those 
which  justify  or  excuse  it,  devolves  upon  him,  unless  the 
proof  on  the  part  of  the  prosecution  tends  to  show  that  the 
crime  committed  only  amounts  to  manslaughter,  or  that 
the  defendant  was  justifiable  or  excusable.'^^  But  this  rule 
applies  only  to  homicide  cases. ■^*'    In  assault  to  murder,,  the 

70  People  V.  Coffman,  24  Cal.  230;  People  v.  Wilson,  49 
Cal.  14,  same  case,  57  Cal.  575;  People  v.  Messersmith, 
61  Cal.  248;  People  v.  Pico,  62  Cal.  5o;  People  v.  Travers, 
88  Cal.  238;  People  v.  McNulty,  93  Cal.  443;  People  v. 
Ward,  105  Cal.  343;  People  v.  Bawden,  90  Cal.  199;  Peo- 
ple V.  Bemmerly,  98  Cal.  304;  People  v.  Hettick,  126  Cal. 
425;  People  v.  Barthleman,  120  Cal.  7;  People  v.  Allen- 
der,  117  Cal.  81;  People  v.  McCarthy,  115  Cal.  255;  Peo- 
ple V.  Eubanks,  86  Cal.  295;  People  v.  Kernaghan,  72 
Cal.  609;  People  v.  Bushton,  80  Cal.  160;  People  v.  Mc- 
Donell,  47  Cal.  134;  People  v.  Hamilton,  62  Cal.  384; 
People  V.  Elliott,  80  Cal.  296;  People  v.  Myers,  20  Cal. 
518;  People  v.  Ferris,  55  Cal.  591;  People  v.  Schmidt, 
106  Cal.  48;  People  v.  Marshal,  59  Cal.  386;  People  v. 
Smith,  59  Cal.  608;  People  v.  Cheong  Foon  Ark,  61  Cal. 
529;  People  v.  Bell,  49  Cal.  485;  People  v.  Wreden,  59 
Cal.   395. 

•^1  People  V.  Millgate,  5  Cal.  127;  People  v.  Rodrigo,  69 
Cal.   605. 

72  People  V.  Millgate,  5  Cal.  127;  People  v.  Stonecifer,  6 
Cal.  410;  People  v.  Coffman,  24  Cal.  236;  People  v. 
Hong  Ah  Duck,  61  Cal.  395;  People  v.  Knapp,  71  Cal. 
9;    People  v.  Rodrigo,  69  Cal.  605. 

73  People  V.  O'Brien,  130  Cal.  1;  People  v.  Dilwood,  94 
Cal.  90;  People  v.  Vereneseneckockockhoff,  129  Cal.  497. 

74  People  V.  Cheong    Foon    Ark,    61    Cal.    527. 

75  Penal   Code   1105. 

7fi  People  V.  Rodrigo,  69  Cal.  605;  People  v.  Knapp,  71  Cal. 

'  9:   People  v.  Mlze,  80  Cal.  46;  People  v.  Gordon,  88  Cal. 

423.  j 


390  CRIMINAL  LAW  AND  PROCEDURE. 

burden  of  proof  remains  on  the  prosecution  throughout.'" 
The  prosecution  muist  be  consistent;  it  cannot  make  out  a 
case  on  one  theory,  and  then  upon  a  wholly  inconsistent 
theory  meet  a  special  defense.''^  The  offense  charged  in  the 
indictment,  and  not  another,  must  be  proved^"  In  statutory 
offenses  the  rule  that  persons  may  be  guilty  of  the  crime 
without  an  intent  to  commit  the  same  against  the  specific 
person  injured  does  not  apply.®" 

ANTICIPATING  THE  DEFENSE. 

The  court  may  permit  the  prosecution  on  introduction  of 
evidence,  to  anticipate  the  defense,*^  or  grant  permission  at 
any  time  before  the  final  submission  to  supply  defects  in 
the  evidence.*-  The  statement  of  the  case  by  the  prosecution 
where  it  shows  the  evidence  is  insufficient  to  convict,  does 
not  entitle  the  defendant  to  a  non-suit.*^ 

HYPOTHETICAL   QUESTION. 

A  hypothetical  question  must  be  based  on  the  evidence," 
or  upon  some  fact  proved  in  the  case,^^  but  it  need  not 
include  all  the  evidence.*"  The  whole  testimony  cannot  be 
read  as  a  part  of  the  question.*" 

INSANITY   OF  DEFENDANT. 

A  person  cannot  be  tried,  adjudged  to  punishment,  or 
punished  for  a  public  offense,  while  he  is  insane.^  When  an 
action  is  called  for  trial,  or  at  any  time  during  trial,  or  when 
the  defendant  is  brought  up  for  judgment  on  conviction,  if 

77  People  V.  Gordon,  88  Cal.  422;   People  v.  Ribolsi,  89  Cal. 
500. 

78  People  V.  Willard,  92  Cal.  482. 

79  People  V.  Fagan,   98  Cal.   230. 

80  People  V.  Keefer,   18   Cal.    636;    People   v.   Mize,   80   Cal. 
44. 

81  People  V.  Van  Horn,  119  Cal.  323;    People  v.   ArrighinU 
122  Cal.  121. 

82  People  V.  Lewis,  124  Cal.  551. 

83  People  V.  EllBWorth.   92   Cal.   594. 

84  People  V.  Dunne,   80  Cal.   34. 

85  People  V.  Graham,    21    Cal.   261, 

86  People  V.  Hill,  116  Cal.  562;  People  v.  Durrani,  116  CaL 
183. 

87  People  V.  Goldenson,   76   Cal.   330. 

1  Penal  Code  1367;  People  v.  Schmidt.  106  Gal.  48. 


.  EVIDENCE.  39.1 

a  doubt  arises  as  to  the  sanity  of  the  defendant,  the  court 
must  order  the  question  of  his  sanity  to  be  submitted  to  a 
jury ;  and  the. trial  or  the  pronouncing  of  the  judgment  must 
be  suspended  until  the  question  is  determined  by  their  ver- 
dict.^ The  doubt  as  to  the  sanity  of  the  defendant  must 
be  in  the  mind  of  the  judge  before  whom  the  cause  is  pend- 
ing.'' An  affidavit  made  by  the  defendant's  attorney  on 
information  and  belief  is  not  sufficient  to  warrant  the  court 
in  suspending  the  judgment  to  determine  the  question  of 
the  sanity  of  the  accused.*  Upon  a  doubt  arising  at  the 
trial  the  question  of  sanity  must  be  determined  upon  the 
court's  own  motion,  without  the  necessity  of  a  plea,  before 
the  main  issues  are  decided. °  Insanity  developed  after 
sentence  will  not  authorize  a  reversal  of  judgment  but 
will  operate  to  suspend  punishment.*' 

ALIBI. 

If  the  evidence  shows  to  the  satisfaction  of  the  jury  that 
the  defendant  was  at  another  place  than  that  of  the  com- 
mission of  the  crime,  at  the  very  time,  he  has  proved  an 
alibi  and  cannot  be  convicted.'^  It  is  a  defense  often 
attempted  by  contrivance,  subornation  and  perjur}^;  and 
the  proof  offered  to  sustain  it,  consequently,  should  be  sub- 
jected to  a  rigid  scrutiny.^  It  may  be  fabricated  perhaps 
with  greater  hope  of  success  or  less  fear  of  punishment 
than  most  other  kinds  of  evidence;  and  honest  witnesses 
often  mistake  dates  and  periods  of  time  and  identity  of  per- 
sons. Like  other  evidence,  therefore,  it  may  be  open  to 
special  observations  by  the  court,  but  such  observations 
should  not  go  to  length  of  informing  the  jury  that  such 

2  Penal    Code   1368. 

3  People  V.  Geiger,  116  Cal.  440;  People  v.  Hettick,  126 
Cal.   425. 

4  People  V.  Knott,    122    Cal.    410. 

5  People  V.  Ah  Ylng,  42  Cal.  18;  People  v.  Lee  Fook,  85 
Cal.  304. 

6  People  V.  Schmidt,  106  Cal.  48. 

7  People  V.  O'Neil,  59  Cal.  259;  People  v.  Burns,  59  Cal. 
359. 

8  People  V.  Levine,  85  Cal.  40.  An-  instruction  to  this 
effect  would  perhaps  be  unsound  as  invading  the  prov- 
ince of  the  jury. 


^92  CRIMINAL  LAW  AND  PROCEDURK. 

evidence  is  less  reliable  than  other  evidence,"  and  this 
defense  should  not  be  scrutinized  more  than  other  defenses.^" 
Any  circumstances  which  tend  to  show  it  are  admissible.^^ 
A  preponderance  of  evidence  is  not  required  ;^'^  if  the  evi- 
dence raises  a  reasonable  doubt  as  to  the  defendant's  pres- 
ence at  the  crime,  it  is  sufficient.^'  Where  an  alibi  is  proved, 
and  there  is  not  sufficient  evidence  to  indicate  an  aiding 
and  abetting  that  would  make  the  defendant  principal  in 
the  crime,  the  jury  should  acquit.^* 

9  People  V.  Wong  Ah  Foo,  69  Cal.  180;  People  v.  Lee  Gam, 
69  Cal.  552. 

10  People  V.  Lattimore,  86  Cal.  403;    People  v.   Levine,  85 
Cal.  39. 

11  People  V.  McCrea,  32  Cal.  98. 

^2  People  V.  Roberts,  122  Cal.  377;  People  v.  Lee  Sare  Bo, 

72   Cal.   627. 
13  People  V.  Fong  Ah   Sing,   64   Cal.   253. 
«<  People  V.  Schodde,  126  Cal.  373. 


CHAPTER  LIX. 


UUTIKS  OF  COUNSEIv  AND  THE 
COURX 


The  state  never  asks  anything  but  justice.  On  the  part 
of  the  state,  the  prosecution  is  but  a  fair  and  just  inquiry 
into  the  guilt  or  innocence  of  the  accused.  She  can  have 
no  interest  in  convicting  the  innocent  or  in  releasing  the 
guilty.  She  stands  perfectly  impartial  as  between  the  com- 
munity and  the  individual,  and  prosecuting  attorneys 
should  therefore,  do  their  duties  faithftJlly,  but  no  more. 
They  should  never  act  as  employed  counsel.  No  advantage 
should  be  taken  of  temporary  public  excitement  against 
the  prisoner,  or  of  any  prejudice  against  him,  arising  from 
any  cause  whatever,  and  if  such  attempts  are  made,  the 
court  before  whom  the  prisoner  is  tried,  should  put  a  stop 
to  them.^  The  district  attorney  should  remember  that  it 
is  not  his  sole  duty  to  convict,  and  that  to  use  his  official 
position  to  obtain  a  verdict  by  illegitimate  and  unfair  means, 
is  to  bring  his  office  and  the  courts  into  distrust.  With  due 
allowance  for  the  zeal  which  is  the  natural  result  of  the 
legal  battle,  and  for  the  desire  of  every  lawyer  to  win  his 
case,  a  conscientious  desire  of  a  sworn  officer  of  the  court 
should  overcome  these.- 

MISCONDUCT    OF   THE   DISTRICT   ATTORNEY. 

It  is  the  province  of  the  trial  judge  to  pass  on  the  mis- 
conduct of  the  district  attorney  and  its  ruling  will  not  be 
disturbed  except  for  an  abuse  of  discretion.^  And  any  mis- 
conduct of  the  district  attorney  which  prejudice  any  of  the 

1  People  V.  Butler,   8   Cal.    441. 

2  People  V.  Lee  Chuck,  78  Cal.   329. 

3  People  V.  Rushing,   130  Cal.   449. 


394  CRIMINAL  LAW  AND  PROCEDURE. 

rights  of  the  accused,  is  reversible  error,'*  otherwise  it  is 
not.*^  It  must  be  such  conduct  as  will  influence  the  jury 
in  rendering  their  verdict."  But  it  is  not  reviewable  unless 
it  is  embraced  in  a  bill  of  exceptions."  The  objection  and 
exception  must  be  taken  in  the  court  below/  otherwise  it 
will  not  be  reviewable.^  It  cannot  be  urged  for  the  first 
time  on  appeal."  When  the  statement  of  the  district  attor- 
ney in  explanation  is  stricken  out  b-y  the  court,  the  error  is 
harmless.''^  An  objection  in  general  terms  is  not  suffi- 
cient." The  following  acts  have  been  held  to  be  miscon- 
duct and  prejudicial  to  the  rights  of  the  defendant:  Com- 
menting on  the  failure  to  call  a  witness,^^  continuously  ask- 
ing improper  questions, ^^  and  repeating  them  irrespective 
of  the  nature  of  the  answers,^*  commenting  on  facts  stricken 
out  of  evidence  and  asserting  that  he  knew  the  same  of  his 
own  knowledge,^^  commenting  on  the  silence  of  the  defend- 
ant at  the  coroner's  inquest,^"  and  attempting  in  bad  faith 
to  improperly  inlkience  the  jury  to  defendant's  damage  in 

*  People  V.  Ah  Len,  92  Cal.  282;  People  v.  Sears,  119  Cal. 

271;  People  v.  Rodley,  131  Cal.  240;  People  v.  Kamaunu, 

110   Cal.  609;    People  v.  Devine,  95   Cal.  234;    People  v. 

Cokahnour,  120  Cal.  253;   People  v.  Wells,  100  Cal.  463. 
4a  People  V.  Ward,  105  Cal.  340;    People  v.  Wong  Chuey, 

117  Cal.  630;  People  v.  Putman,  129  Cal.  258. 
e  People  v.  Mayes,    113    Cal.    622;    People   v.    Woon   Tuck 

Wo,   120   Cal.   295. 

6  People  V.  Faulke,  96  Cal.  17. 

7  People  V.  Beaver,    83    Cal.    419;    People   v.    Brittan,    118 
Cal.   409. 

8  People  V.  Louie  Foo,  112  Cal.  17;   People  v.  Kramer,  117 
Cal.  650. 

»  People  V.  Lane,  101  Cal.'  513;  People  v.  Kramer,  117  Cal. 
647;    People  v.  Brittan,   118   Cal.   412. 

10  People  V.  Bene,  130  Cal.  159;  People  v.  Lee  Chuck,  78 
Cal.  317;   People  v.  Ah  Fook,  64  Cal.  380. 

11  People  V.  Frigerio,  107  Cal.  151;  People  v.  Hickman,  113 
Cal.  88;   People  v.  Kramer,  117  Cal.  651. 

12  People  V.  Smith,    121    Cal.    355. 

13  People  V.  Wells,  100  Cal.  459;  People  v.  Gordon,  103  Cal. 
573;  People  v.  Ward,  105  Cal.  340;  People  v.  Searcey, 
121  Cal.  4;  People  v.  Ryan.  108  Cal.  585;  People  v.  Un 
Dong,  106  Cal.  88. 

14  People  V.  Mullings,  83  Cal.  138;  People  v.  Wells,  100 
•Gal.   464. 

15  People  V.  Valliere,  127  Cal.  65;  People  v.  Bowers,  79 
Cal.  415;   People  v.  Wells,  100  Cal.  459. 

10  People  V.  Lemperle,   94   Cal.    45. 


DUTIES  OF  COUNSEL  AND  THE  COURT.  886 

the  opening  statement.^^  But  statement  of  facts  intended 
to  be  proved/*  or  offering  in  good  faith  to  make  proof  even 
though  unable  to  do  so,  is  not  misconduct.'®  Neither  is  a 
reference  to  a  well  known  historical  incident  by  way  of 
illustration,^"  nor  charging  malice  to  the  defendant  where 
he  is  convicted  of  manslaughter,^^  nor  the  use  of  discour- 
teous language  to  counsel  for  defendant,^^  nor  a  request 
of  by-standers  to  retire  while  prosecutrix  is  testifying.^^ 
A  mis-statement  of  evidence  in  the  argument  will  not  war- 
rant a  reversal,  if  the  statements  were  made  in  reply  to 
similar  argument  by  the  counsel  for  the  defendant,  and  the 
court  instructs  the  jury  not  to  consider  them.-*  Where  the 
testimony  is  ruled  out,  or  the  question  withdrawn,  upon 
objection  or  upon  suggestion  by  the  court  that  it  is  improper, 
there  is  no  misconduct.-^ 

MISCONDUCT   OF    COURT. 

'Misconduct  of  the  court  in  the  presence  of  the  jury  is 
reversible  error  if  excepted  to.-*^  But  the  misconduct  must 
be  judged  from  the  record  alone.^'  Improper  remarks  of 
the  judge  are  not  error,  if  the  jury  is  instructed  to  dis- 
regard them.-*  The  censure  of  defendant's  counsel  is  not 
improper, ^^  where  counsel  insists  upon  repeating  many 
immaterial  questions.^"    But  ai  statement  by  the  court,  upon 

17  People  V.  Searcey,  121  Cal.  1;  People  v.  Wells,  100  Gal. 
459. 

18  People  V.  Gleason,    127    Cal.    323. 

19  People  V.  M'Kay,  122   Cal.   628. 

20  People  V.  Barthleman,  120  Cal.  9. 

21  People  V.  Yokum,   118   Cal.   438. 

22  People  V.  Patterson,  124  Cal.  102. 

23  People  V.  Vann,   129  Cal.   118. 

24  People  V.  Bush,   68   Cal.   623. 

25  People  V.  Ward,  105  Cal.  335;  People  v.  Mayes,  113  Cal. 
622;  People  v.  Wong  Cliuey,  117  Cal.  630;  People  v. 
Bowers,  79  Cal.  415;  People  v.  Hamberg,  84  Cal.  474; 
People  V.  Devine,  95  Cal.  231;  People  v.  Wells,  100  Cal. 
463;   People  v.  Phelan,  123  Cal.  551;   Peop^le  v.  Ross,  85 

Cal.  383. 

26  People  V.  Abbott,  101  Cal.  645;  People  v.  Hawley,  111 
Cal.   78. 

27  People  V.  Goldenson,   76   Cal.  328. 

28  People  V.  Northey,  77  Cal.  618;  People  v.  Mayes,  113 
Cal.  623. 

20  People  V.  Baker,  100  Cal.  188. 
30  People  V.  Oliveria,   127   Cal.   376. 


396  CRIMINAL  LAW  AND    PROCEDURE. 

a  disagreement  of  the  jury,  that  it  could  not  understand 
why  twelve  honest  men  could  not  agree  is  not  cured  by 
a  charge  that  the  jury  is  judge  of  the  facts.^^  The  reasons 
for  the  ruling  of  the  court  are  not  important  if  the  decision 
is  correct,^^  and  an  order  in  general  terms  is  not  limited 
by  the  opinion  of  the  court  making  it.^^ 

ARGUMENT  OF  COUNSEL. 

The  neglect  or  refusal  of  the  defendant  to  be  a  witness 
cannot  in  any  manner  prejudice  him,  nor  be  used  against 
him  on  the  trial  f*  neither  can  his  failure  to  testify  be  com- 
mented on,^°  nor  taken  into  consideration  by  the  appellate 
court,^"  nor  can  any  presumption  be  indulged  in  against 
him  on  account  of  such  failure.^^  But  error  based  upon  an 
abuse  of  his  right  to  refuse  to  testify  should  be  taken  advan- 
tage of  upon  motion  for  a  new  trial. ^®  The  right  to  open  and 
close  the  case  belongs  to  the  district  attorney.'®  The  num- 
ber of  attorneys  who  are  allowed  to  argue  is  within  the  dis- 
cretion of  the  court.**'  In  any  offense  not  punishable  with 
death,  the  court  may  refuse  to  permit  more  than  one  coun- 
sel to  argue  the  case.*^  The  court  should  fix  reasonable 
limits  to  the  time  of  argument  of  counsel,*^  but  it  cannot 
unreasonably  limit  it.*'  The  court  may  refuse  to  allow 
counsel  to  argue  the  law  in  his  opening  statement,**  and 
confine  him  to  a  statement  of  the  facts  expected  to  be  proved 
and  effects  thereof.*'*     The  court  should  not  allow  counsel 

31  People^v.  Kindleberger,   100  Cal.   367. 

32  People  V.  Graham,   21  Cal.   261. 

33  People  V.  Flood,   102   Cal.  330. 

34  Penal  Code  1323. 

35  People  V.  Brown,  53  Cal.  67;  People  v.  Tyler,  36  Cal. 
522;  People  v.  McGunglU,  41  Cal.  431;  People  v.  San- 
ders. 114  Cal.  218. 

36  People  V.  Page,  116  Cal.   388. 

37  People  V.  Anderson,    39    Cal.    703. 

38  People  V.  Sansome,    98   Cal.   235. 

39  People  V.  Mortimer,  46  Cal.  115. 

40  People  V.  Ah  Wee,  48  Cal.  236. 

41  People  V.  Jones,  123  Cal.  65. 

42  People  V.  Tock  Shew,  6  Cal.  637. 

43  People  V.  Green,   99   Cal.   564. 

44  People  V.  Carty,  77   Cal.   213. 

45  People  V.  Goldenson,  76  Cal.  328;  People  v.  Bezy,  67 
Cal.  223. 


DUTIES  OF  COUNSEL  AND  THE  COURT.  397 

to  state  or  argue  on  facts  not  proved  nor  sought  to  be 
proved.*®  But  erroneous  statements  of  the  evidence  is  not 
ground  for  a  new  trial.*^  Counsel  may  express  an  opinion 
in  his  argument,*^  and  physical  illustrations  may  be  used 
where  the  jury  is  cautioned  that  the  argument  is  not  evi- 
dence.*® The  range  of  discussion  of  counsel  on  argument 
before  the  jury  is  wide.  Matters  of  common  knowledge  and 
historical  facts  may  be  referred  to,  and  interwoven  in  the 
argument.  Allusions  may  be  made  to  the  prevalence  of 
crime,  and  to  the  duty  of  the  jury.**"  No  advantage  can  be 
taken  of  the  misconduct  of  an  attorney  on  the  argument, 
unless  the  interposition  of  the  court  is  asked  and  exception 
taken  for  a  refusal,^^  but  improper  comments  of  the  district 
attorney,  if  not  stopped  by  the  court  after  objection,  is 
reversible  error.^^  The  defense  must  be  made  after  all  the 
evidence  is  in,  and  the  court  will  not  allow  argument  to  be 
made  until  after  the  prosecution  closes  its  case.^^  Reading 
law  to  the  jury  is  not  error  where  the  court  instructs  the 
jury  to  disregard  it,^*  but  the  practice  is  not  commendable.^** 
And  where  the  record  is  silent  as  to  the  character  of  the 
extract  sought  to  be  read,  no  error  can  be  predicated  on  a 
refusal  to  allow  the  reading  of  law  books  to  the  jury.^* 
Counsel  may  not  on  argument  read  as  part  of  his  argument 

iG  People  V.  Mitchell,  62  Cal.  411;  People  v.  Barnhart,  59 
Cal.  381;  People  v.  Lee  Chuck,  78  Cal.  329;  People  v. 
Smith,   121   Cal.    362. 

47  People  V.  Barnhart,  59  Cal.  402;  People  v.  Lee  Ah  Yute, 
60  Cal.   97. 

48  People  V.  McMahon,   124   Cal.   435. 
40  People  V.  Durrant,   116   Cal.   185. 

50  People  V.  Molina,  126  Cal.  505;  People  v.  Hall,  94  Cal. 
599;  People  v.  Mitchell,  62  Cal.  412;  People  v.  Wheeler, 
65  Cal.  77. 

51  People  V.  Ah  Fook,  64  Cal.  380;  People  v.  Beaver,  83 
Cal.  419;  People  v.  Abbott,  101  Cal.  647;  People  v. 
Kramer,  117  Cal.  651. 

52  People  V.  Lee  Chuck,  78  Cal.  317;  People  v.  Wells.  100 
Cal.  463;  People  v.  Hamberg,  84  Cal.  474;  People  v. 
Devine,  95  Cal.  231;   People  v.  Lemperle,  94  Cal.  48. 

53  People  V.  Williams,  43  Cal.  344;  People  v.  Goldenson, 
76  Cal.  348. 

54  People  V.  Treadwell,  69  Cal.  226. 

55  People  V.  Forsythe,    65    Cal.    101. 

56  People  V.  Godwin,  123  Cal.  374;  People  v.  Anderson, 
44   Cal.    70. 


S90  CRIMINAL  LAW  AND  PROCEDURE. 

Standard  medical  works.^'  The  court  may  allow  private 
counsel  to  assist  the  district  attorney,'^*  in  its  discretion.^^ 
It  is  not  restricted  in  allowing  such  associate  counsel  to 
times  when  the  district  attorney  cannot  conduct  the  pros- 
ecution.*"* The  associate  counsel  may'  make  the  closing 
argument  by  permission  of  the  court."* 

TAKING    THE    CASE    FROM    THE    JURY. 

Upon  a  failure  of  proof  in  a  particular  necessary  to  con- 
viction, a  verdict  of  not  guilty  should  be  directed  by  the 
court  ;°^  but  when  the  failure  is  not  so  clear  as  to  present 
a  question  of  law  for  the  court,  it  has  no  power  to  direct 
a  verdict  of  not  guilty ;  it  may,  however,  advise  the  jury  to 
bring  in  such  a  verdict."''  The  jury  is  not  bound  to  obey, 
however."^*  An  exception  to  a  refusal  to  advise  the  jury 
to  acquit  is  authorized  only  when  there  is  an  absence  of 
substantial  evidence  as  to  some  material  fact."'*  It  is 
improper  when  there  is  evidence  of  guilt,"^  or  where  the 
evidence  is  conflicting."* 

RULES  OF  COURT. 

The  object  of  rules  is  to  expedite  the  trial  of  causes  and 
not  to  delay  them,"^  and  a  strict  observance  should  not  be 
permitted  to  impede  justice."^^     Rules  requiring  the  sub- 

87  People  V.  Wheeler,   60  Cal.   581;    People  v.   Mitchell.   62 

Cal.  412. 
68  People  V.  Powell,  87  Cal.  350;   People  v.  Turcott,  65  Cal. 

127. 
59  People  V.  Blackwell,  27  Cal.  66;    People  v.  Gregory,  120 

Cal.  16;   Benton    v.  Budd,  120  Cal.  332. 
«o  People  V.  Walters,   98   Cal.   138. 

61  People  V.  Strong,  46  Cal.  303;  People  v.  Murphy,  47  Cal. 
105. 

62  People  V.  Jones,  31  Cal.  566;  People  v.  Eagan,  116  Cal. 
291. 

«3  People  V.  Roberts,  114  Cal.  67;  People  v.  Ammerman, 
118  Cal.  28;  People  v.  Horn,  70  Cal.  17;  People  v.  Dan- 
iels. 105  Cal.  266. 

83a  People  V.  Daniels,   105   Cal.   266. 

8*  People  V.  Lewis,  124  Cal.  551. 

65  People  V.  Luchetti,  119  Cal.  502. 

66  People  V.  Piggott    126   Cal.    510. 

67  People  V.  Durrant,   119  Cal.   201. 
67a  People  V.     Silva,  121   Cal.  668. 


DUTIES  OF  COUNSEL  AND  THE  COURT.  399 

« 

mission  of  instructions  to  the  other  side  under  penalty  of 
having  the  same  refused  are  not  just,®* 

AMENDING   THE.  REC(3RD. 

The  court  has  inherent  power  to  amend  the  record  to  con- 
form to  the  truth,""  and  may  do  so  even  after  judg-ment/" 
It  is  doubtful  whether  the  record  can  be  amended  after  an 
appeal.'^' 

G8  People  V.  Williams,   32   Cal.   280. 

«»  People  V.  Durrant,   116   Cal.   179;    People   v.    Curtis,   113 
Cal.   68. 

70  People  V.  Murback,  64  Cal.  370;   People  v.  Goldenson,  76 
Cal.  345;  People  v.   McNulty,  93  Cal.   444. 

71  People  V.  Moore,    103    Cal.    508. 


CHAPTER  LX. 


INSTRUCTIONS. 


AS  TO   MATTERS  OF   FACT, 

It  is  the  duty  of  the  jury  to  decide  all  questions  of  fact 
arising  on  the  general  issue  of  not  guilty.  It  has  the  right 
to  find  the  facts  and  apply  to  them  the  law  as  given  by  the 
court.^  It  cannot  decide  on  the  pertinency  of  the  evidence. 
It  is  in  no  case  the  judge  of  the  law,*  except  in  prosecution 
for  criminal  libel,''  but  is  bound  by  the  law  as  given  by  the 
court.^  The  jury  are  the  exclusive  judges  of  the  credibility 
of  witnesses,  of  the  weight  of  testimony,  of  the  facts  estab- 
lished, of  the  presumptions  deducible  from  such  facts,^  and 
of  the  credibility  and  weight  of  circumstances,®  unless  the 
verdict  indicates  that  it  was  given  under  the  influence  of 
passion."  For  such  purpose  the  jurors  may  use  their 
eyes  as  well  as  their  ears,^  but  they  are  not  allowed 
arbitrarily  to  believe  a  part  and  disbelieve  a  part  of  the  evi- 
dence. Their  discretion  is  not  unlicensed.'^  The  court  has 
the  right  to  state  the  evidence  for  the  purpose  of  pointing 
its  instructions  and  making  their  pertinency  apparent  to  the 
jury,  if  it  assumes  no  fact  as  proven  and  states  nothing  by 

1  People  V.  Lem  You,  97  Cal.   224. 

2  People  V.  Ivey,  49  Cal.  56. 

3  Constitution  Art.  1,  sec.  9;  Penal  Code  251. 

4  People  V.  Worden,  113  Cal.  569. 

s  People  V.  Messersmith,  61  Cal.  246;  People  v.  Clark,  84 
Cal.  573;  People  v.  Wright,  93  Cal.  564;  People  v.  Eng- 
lish, 30  Cal.  215. 

e  People  v.  Barry,  31  Cal.  357. 

t  People  V.  Sullivan,  129  Cal.  557;  People  v.  Manning,  18 
Cal.  335;  People  v.  Mayes,  66  Cal.  597;  People  v.  Ah 
Jake,  91  Cal.  98;   People  v.  Freeman,  92  Cal.  359. 

8  People  V.  Storke,  128   Cal.   486, 

0  People  V.  Strong,  30  Cal.   151, 


INSTRUCTIONS.  401 

way  of  argument  thereon,  nor  anything  calculated,  expressly 
or  by  way  of  implication,  to  indicate  a  shifting  of  burden 
of  proof  to  the  defendant."  It  is  for  the  jury  to  determine 
what  is  the  substance  and  eflFect  of  the  testimony,^^  the 
weight  of  evidence,^^  and  to  determine  the  facts  and  render 
a  verdict  in  accordance  with  instructions  given.^^  While  it 
is  improper  for  the  court  to  instruct  the  jury  with  respect  to 
matters  of  fact,  it  may  state  the  testimony  and  declare  the 
Jaw."  The  safer  course  is  to  confine  the  instructions,  unless 
requested  by  defendant,  to  a  few  general  principles  of  law.^* 
Instructions  should  contain  all  applicable  principles  of  law, 
but  no  opinion  upon  the  facts.^®  All  instructions  upon  fact 
are  erroneous  and  should  be  refused  as  invading  the  province 
of  the  jury.^'^  Instructions  dangerously  near  the  border  line 
should  not  be  given. ^^  The  judge  cannot  be  too  cautions 
in  this  regard.^®  The  jury  should  not  in  any  case  be  allowed 
to  deduce  the  judge's  opinion  as  to  the  guilt  or  innocence 
of  the  defendant,  from  his  instructions.^"     And  where  an 

10  People  V.  Brittan,  118  Cal.  409. 

11  People  V.  Gordon,  88  Cal.  422;  People  v.  Choynski,  95 
Cal.  643;  People  v.  Lang,  104  Cal.  367;  People  v.  Hertz, 
105  Cal.  665;  People  v.  Worthington,  115  Cal.  244. 

12  People  V.  Cline,  83  Cal.  374;  People  v.  Willard,  92  Cal. 
482;  People  v.  Travers,  88  Cal.  233;  People  v.  Van  Ewan, 
111  Cal.  152;  People  v.  Rolfe,  61  Cal.  540;  People  v. 
Titherlngton,  59  Cal.  598;  People  v.  Thomson,  92  Cal. 
506;  People  v.  Williams,  59  Cal.  674;  People  v.  Ah  Sing, 
59  Cal.  400;    People  v.  Malaspina,  57  Cal.  628. 

13  People  V.  Madden,  76  Cal.  521. 

14  Constitution,  Art  VI,  ^ec.  19. 

15  People  V.  Ah  Fung,  17  Cal.  377;  People  v.  Byrnes,  SO 
Cal.  208. 

16  People  V.  Samonset,  97  Cal.  448;  People  v.  McNamara, 
94  Cal.  509:  People  v.  Van  Ewan,  111  Cal.  152;  People 
V.  Tapia.  131  C?.l.  647. 

17  People  V.  Cowgill,  93  Cal.  596;  People  v.  Casey.  65  Cal. 
260;  People  v.  Flynn,  73  Cal.  516;  People  v.  Hitchcock, 
104  Cal.  485:  People  v.  Webster,  111  Cal.  384;  People 
V.  Ah  Oon.  56  Cal.  188;  People  v.  Dick,  34  Cal.  663; 
People  V.  Fong  Ching,  78  Cal.  173;  People  v.  Murray, 
86  Cal.  35;  People  v.  Travers,  88  Cal.  233;  People  v. 
Van  Ewan.  Ill  Cal.  152;  People  v.  Wallace,  89  Cal.  168; 
People  V.   Mitchell,   55   Cal.   236. 

18  People   V.    Opie,   123   Cal.   295. 

19  People  V.   Hertz,  105  Cal.   660. 

20  People  V.  Stanton,  106  Cal.  139;  People  v.  Van  li3wan, 
111  Cal.  152. 


CRIMES--26 


402  CRIMINAL  LAW  AND  PROCEDtTKBT, 

instruction  given  invades  the  province  of  the  jury,  the 
"appellate  court  will  not  weigh  the  testimony  to  determine 
whether  the  verdict  is  right  under  the  evidence.  The  error 
is  not  cured  by  a  general  instruction  that  the  jury  should 
'tiisregard  the  opinion  of  the  court  as  to  the  facts."  In 
pef jury  cases  the  court  may  instruct  as  to  what  facts  will 
^how  material  testimony.^^  The  following  have  been  held 
to  be  instructions  on  the  facts:  a  statement  that  the  wit- 
nesses undertake  to  testify  to  certain  facts;''*  an  instruc- 
tion upon  the  credibility  of  relatives  of  the  defendant  as 
witnesses  f*^  upon  necessity  of  a  motive  j-'*  upon  the  relative 
value  of  direct  and  circumstantial  evidence  ;^^  that  the  evi- 
dence, if  believed,  establishes  certain  facts  f  that  deceased 
had  threatened  to  kill  defendant  ;^^  upon  the  method  of 
weighing  testimony,^*^  upon  the  credibility  of  an  accom- 
plice testifying  for  the  defendant,^"  and  that  a  witness  was 
an  accomplice.^^  It  is  for  the  jury  also  to  determine  the 
question  of  idem  sonans,^^  the  motive  of  the  flight,**  the 
strength  of  corroborating  evidence,**  the  presence  or 
absence  of  malice,*^  or  motive,*"  the  intent,*^  the  felonious 
character  of  the  appropriation  of  the  goods,*^  whether  or 
not  the  negligence  was  criminal,*®  the  degree  of  the  crime,*" 

21  People  V    Chew  Sing  Wing,  88  Cal.  268. 

22  People  v."  Lem  You,  97   Cal.   224. 

23  People  V.  Ellenwood,  119  Cal.   166. 

24  People  V.  Shattuck,  109  Cal.  673;   People  v.  Van  Ewan, 
111  Cal.  152. 

25  People   V.   Vereneseneckockockhoff,   129   Cal.   497. 

26  People  V.   O'Brien,  130   Cal.   1;    People  v.   Verenesenec- 
kockockhoff. 129  Cal.  497. 

2T  People  V.  Chew  Sing  Wing,  88  Cal.  268. 

28  People  V.  Roemer,  114  Cal.  51. 

20  People  V.  Newcomer,  118  Cal.  263. 

30  People   V.   O'Brien,   96   Cal.   171;    People   v.   Bonney,   98 
Cal.    279. 

31  People  V.  Sansome,  98  Cal.  235; 

32  People  V.  Fick,  89  Cal.  144. 
83  People  V.  Ross,  115  Cal.  233. 

34  People  V.  Whelan,  117  Cal.  559. 

35  People  V.  Roberts,  6  Cal.  214. 

36  People  V.  Ah  Fung,  17  Cal.' 377;    People  v.   Byrnes,  30 
Cal.    208. 

37  People  V.  Winters,  93  Cal.  277;   People  v.  Stone,  16  Cal. 
369. 

38  People  V.  Carrillo,  54  Cal.  63. 

88  People  V    Kilvington,  104  Cal.  86. 


INSTRUCTIONS.  403 

but  where  it  is  clear  that  the  offense  could  be  only  of  a 
certain  degree,  it  is  not  improper  to  instruct  as  to  degree,*^ 
and  an  erroneous  instruction  upon  intent  is  harmless  where 
the  defendant  was  convicted  of  a  lesser  offense.*^  But  an 
instruction  on  facts  does  not  include  a  caution  to  the  jury 
against  concluding  from  a  ruling  of  the  court  that  the  court 
had  determined  the  guilt  of  the  defendant/^  a  statement 
that  the  evidence  is  conflicting  in  certain  particulars,^*  that 
evidence  had  been  introduced  tending  to  show  certain 
facts,*'^  a  correct  statement  of  the  theory  of  the  defendant 
and  the  people,*®  that  self-defense  is  not  involved  where 
there  is  no  evidence  of  it  in  the  record,*'^  that  there  is  a  total 
absence  of  evidence  as  to  a  particular  fact,  if  true;**"  that 
there  is  a  conflict  in  the  evidence  when  in  fact  there 
is,*^  and  a  caution  to  the  jury  about  defendant's  evidence,*^" 
but  the  better  rule  is  to  refrain  from  comments  on  defend- 
ant's testimony. °^  The  jury  may  be  directed  to  do  those 
things  which  they  evidently  knew  or  would  do  without 
being  told.^-  A  statement  by  the  court  to  counsel,  not 
addressed  to  jury,  as  to  the  reasons  for  its  rulings,  is  not 
a  charge  to  the  jury.^^     The  court  may  instruct  the  jury 

40  People  V.  Gibson,  17  Cal.  283;  People  v.  Bealoba,  17  Cal. 
389;  People  v.  Martinez,  66  Cal.  278;  People  v.  Hunt, 
59  Cal.  430;  People  v.  Bawden,  90  Cal.  197;  People  v. 
Cronin,  34  Cal.  210;  People  v.  Russell,  81  Cal.  618. 

41  People  V.  Kruger,  100  Cal.  523. 

42  People  V.'  Wallace,  101  Cal.  281. 

43  People  V.  Johnson,   104  Cal.   418 

44  People  V.  Flynn,  73  Cal.  511;  People  v.  Hitchcock,  104 
Cal.    485. 

45  People  V.  Giancoli,  74  Cal.  642;  People  v.  Cummings,  113 
Cal.  90;  People  v  Perry,  65  Cal.  569;  People  v.  Vasquez, 
49   Cal.   560. 

46  People  V.   Worden,   113    Cal.  569. 

47  People   V.    Worthington,   115   Cal.   242. 

48  People  V.  Prather,  120  Cal.  660;  People  v.  Sternberg, 
111   Cal.   8. 

49  People  V.  Un  Dong,  106  Cal.  83. 

50  People  V.  Murray,  86  Cal.  31;  People  v.  Van  Ewan,  111 
Cal.  150;  People  v.  Faulke,  96  Cal.  20;  People  v.  Lang, 
104  Cal.  368;   People  v.  Anderson,  105  Cal.  35. 

51  People  V.  Hitchcock,  104  Cal.  486;  People  v.  Curry,  103 
Cal.  548;   People  v.  O'Brien,  96  Cal.  182. 

52  People  V.  Bene,  130  Cal.  159;  People  v.  Newcomer,  118 
Cal.  263;   People  v.  Barthleman,  120  Cal.  7. 

'  53  People  V.  McLean,  84  Cal.  480. 


404  CRIMINAL  LAW  AND  PROCEDURE. 

as  to  a  conclusion  to  be  drawn  from  facts  found  to  be 
true.^*  But  the  instruction  upon  the  power  to  produce 
stronger  evidence  should  rarely  be  given.®'*  Instructions 
tending  to  show  the  commission  of  another  crime  are  errone- 
ous.**® The  law  is  not  left  to  the  jury  by  telling  them  that 
a  certain  instruction  might  or  might  not  be  involved  in  the 
case  as  they  determine  the  facts.**^  Where  the  instruction 
uses  the  word  "  unlawfully  "  it  should  be  defined."*®  An 
instruction  as  to  the  danger  of  conviction  may  be  modified 
by  directing  the  jury  to  consider  matters  of  common  knowl- 
edge.'® Argumentative  'instructions  should  be  refused."* 
The  effect  of  evidence  should  be  limited  by  the  court  when 
it  is  admissible  onlv  for  a  limited  purpose."^  A  crime  may 
be  designated  as  an  outrage  by  the  court."-  The  charge 
must  be  considered  as  a  whole  to  determine  whether  it  is 
an  instruction  on  facts.®^  Where  the  jury  is  told  that  it  is 
within  their  power  to  find,  it  means  that  it  is  within  the 
province  of  the  jury  to  find,***  An  instruction  as  to  the  rule 
of  evidence  in  most  cases  will  justify  the  jury  in  consider- 
ing it  as  a  rule  of  that  case.*"* 

ASSUMING    FACTS. 

The  court  is  not  permitted  to  assume  any  fact  which  is 
not  admitted,  or  on  which  there  is  a  conflict  of  evidence.*' 

54  People  V.  Jones.  123   Cal.  65. 

55  People  V.  Cuff,  122  Cal.  589;  People  v.  O'Brien^  96  Cal. 
180;   People  v.  Streuber,  121  Cal.  431. 

56  People  V.  Tipton,  73  Cal.  405. 

57  People  V.  Morton,  72  Cal.  62. 

58  People  V.  Byrnes,  30  Cal.  207. 

59  People  V.  Sternberg,  127  Cal.  510;  People  v.  Travers,  88 
Cal.  233;   People  v.  Ebanks,  117  Cal.  652. 

60  People  V.  Winters,  125  Cal.  325. 

61  People  V.  Estrada,  49  Cal.  171;  People  v.  Mallon,  103 
Cal.   514. 

62  People  V.  Pool,  27  Cal.  572. 

63  People  V.  Dowell,  64  Cal.  467;  People  v.  Forsythe,  65 
Cal.   101. 

64  People  V.  Pool,  27  Cal.  572. 

65  People  V.  Ribolsi,  89  Cal.  492. 

66  People  V.  Cotta,  49  Cal.  166;  People  v.  Buster,  53  Cal. 
613;  People  v.  Bishop,  81  Cal.  113;  People  v.  Carabin, 
14  Cal.  439;  People  v.  Strong,  30  Cal.  158;  People  v. 
Gross,  123  Cal.  389;  People  v.  Roberts,  122  Cal.  377;  Peo- 
ple V.  Thompson,  115  Cal.  160;   People  v.  Ah  Fung,  16 


INSTRUCTIONS.  405 

But  where  there  is  no  conflict  in  the  evidence  the  court  may 
assume  a  fact.°^  Admitted  facts,"*  those  proved  without 
shadow  of  conflict,""  and  those  not  disputed,  may  be  assumed 
by  the  court/"  Instructions  are  always  to  be  given  with 
reference  to  the  facts  proved,  and  if  there  is  no  evidence 
on  a  particular  point,  the  court  may  so  stateJ^  But  an 
instruction  that  no  evidence  has  been  introduced  which 
tends  in  slightest  degree  to  show  a  fact  borders  dangerously 
upon  matters  of  fact.'^-  It  is  erroneous  to  assume  the  guilt 
of  the  defendant  ;"^  to  show  any  hostility  towards  him,''*  or 
to  give  any  opinion  as  to  the  evidence.''^  Neither  is  the 
court  authorized  to  tell  the  jury  that  defendant's  innocence 
conclusively  appears  from  the  evidence,^"  nor  that  there  is 
no  evidence  of  a  fact  where  there  is  evidence  which  tends  to 
show  it.'"  Instructions  should  be  hypothetical  and  based 
on  the  hypothesis  of  the  truth  or  falsity  of  the  evidence.'* 

Cal.  137;  People  v.  Tapia,  131  Cal.  647;  People  v. 
Hurtado,  63  Cal.  288;  People  v.  Ramirez,  56  Cal.  537;  Pe(>; 
pie  V.  Lanagan,  81  Cal.  144;  People  v.  Gordon,  88  Cal! 
426;  People  v.  Choynski,  95  Cal.  643;  People  v.  Hertz, 
105  Cal.  665;  People  v.  Williams,  17  Cal.  142;  People  v. 
Stanton,  106  Cal  142;  People  v.  Taylor,  36  Cal.  265; 
People  V.  Dick,  32  Cal.  213;  S.  C.  34  Cal.  633. 

67  People  V.  Phillips,  70  Cal.  61;  People  v.  Worthington, 
115  Cal.  245;  People  v.  Lee  Sare  Bo,  72  Cal.  623;  Peo- 
ple V.     Wong  Ah  Foo,  69  Cal.  180. 

68  People  V.  Hobson,  17  Cal.  424;  People  v.  Garcia,  25 
Cal.  535;  People  v.  Pool,  27  Cal.  572;  People  v.  Strong, 
30  Cal.  151;  People  v.  Jones,  32  Cal.  80;  People  v.  Jim 
Ti,  32  Cal.  60;  People  v.  Ah  How,  34  Cal.  218;  People 
V.  McCrea,  32  Cal.  98. 

69  People  V.  Putman,  129  Cal.  258;  People  v.  Messersmlth, 
61  Cal.  249;  People  v.  Phillips,  70  Cal.  61;  People  v. 
Lee  Sare  Bo,  72  Cal.  623;  People  v.  Mallon,  103  Cal.  513. 

70  People  V.  Baldwin,  117  Cal.  244. 

Ti  People  V.  Gannon,  61  Cal.  476;  People  v.  King,  27  Cal.  507; 
People  V.  Byrnes,  30  Cal.  207;  People  v.  Taylor,  36  Cal. 
266;    People  v.  Best,  39  Cal.  691. 

72  People  V.  Schoedde,  126  Cal.  373;  People  v.  Plyler,  126 
Cal.   379. 

73  People  V.  Lanagan,  81  Cal.  142;  People  v.  Bruggy,  93 
Cal.  488. 

74  People  V.    Travers,   88   Cal.   233. 

75  People  V.  Baldwin,  117  Cal.  244. 

76  People  V.   Streuber,  121  Cal.  431. 

77  People  V.  Curlee,  53  Cal.  604. 

78  People  V.  Levison,  16  Cal.  99;  People  v.  Strong,  30  Cat. 
158;  People  v.  Buster,  53  Cal.  613.  , 


406  CRIMINAL  LAW  AND  PROCEDURE. 

The  facts  must  be  aflfirmatively  shown,  not  assumed^®  The 
court  should  never  invade  the  province  of  the  jury,  usurp 
its  powers,  nor  assume  the  existence  of  facts  necessary  to 
convict.®"  It  may  assume  that  the  killing  was  murder 
where  there  is  no  evidence  of  manslaughter,^^  but  where 
the  killing  is  not  admitted,  an  instruction  that  it  was  not 
disputed  is  error.®^  Presumption  of  fact  falls  within  the 
exclusive  province  of  the  jury.*''  Where  there  is  no  con- 
flict in  the  evidence  the  court  may  presume  facts,'*  but  it 
cannot  presume  the  degree  of  guilt.*^  In  the  absence  of 
legal  presumption  the  court  cannot  instruct  the  jury  that 
one  fact  should  be  inferred  from  another  fact,®*  but  it  may 
instruct  on  the  presumption  of  innocence®"  and  as  to  the 
credibility  of  a  witness.®®  The  jury  is,  however,  the  sole 
judge  of  the  credibility  of  witnesses,®"  and  is  at  liberty  to 
discredit  the  testimony  of  any  witnesses  or  give  such  weight 
to  it  as  it  sees  fit.'-'"     The  jury  should  not  be  instructed  to 

«  79  People  V.  Atherton,  51  Cal.  495. 

80  People  V.  Ybarra,  17  Cal.  166;  People  v.  Messersmith,  61 
Cal.  249;  People  v.  Chew  Sing  Wing,  88  Cal.  270;  People 
V.  Williams,  17  Cal.  142. 

81  People  V.  Welch,  49  Cal.  174. 

82  People  V.  Lee  Chuck,  74  Cal.  30. 

83  People  V.  Walden,  51  Cal.  588;  People  v.  Carrillo,  54 
Cal.  64;  People  v.  Wong  Ah  Ngow,  54  Cal.  153;  Peo- 
ple V  Messersmith,  61  Cal.  249;  People  v.  Mitchell,  55 
Cal.  237;  People  v.  Williams,  73  Cal.  534. 

84  People  V.  Lee  Sare  Bo,  72  Cal.  623. 

85  People  V.  Gibson,  17  Cal.  283;  People  v.  Hunt,  59  Cal. 
433;  People  v.  Lee,  60  Cal.  86;  People  v.  Bawden,  90  Cal. 
197. 

80  People  v.  Carrillo,  54  Cal.  64;  People  v.  Williams,  7S 
Cal.  534;   People  v.  Cobler,  108  Cal.  544. 

87  People  V.  Chaves,  122  Cal.  134. 

88  People  V.  Murray,  86  Cal.  31;  People  v.  Dolan,  96  Cal. 
315;  People  v.  Lang,  104  Cal.  367;  People  v.  Webster, 
111  Cal.  384. 

80  People  V,  Eckert,  16  Cal.  Ill;  People  v.  Creegan,  121 
Cal.  554;'  People  v.  Bolanger,  71  Cal.  17;  People  v. 
Kraker,  72  Cal.  459;  People  v.  Sternberg,  127  Cal.  510; 
People  V.  Vance,  21  Cal.  400;  People  v.  Williams,  59 
Cal.  674;  People  v.  O'Brien,  130  Cal.  1;  People  v.  Cesena, 
90  Cal.  381;  People  v.  Gibson,  53  Cal.  601;  People  v. 
Van  Ewan,  111  Cal.  152. 

80  People  V.  Compton,  123  Cal.  403;  People  v.  Eckert,  16 
Cal.  Ill;  People  v.  Ybarra,  17  Cal.  166;  People  v.  Gib- 
son, 53  Cal.  601;  People  v.  Messersmith,  61  Cal.  246; 
People  V.  Gordon,  88  Cal.  422;   People  v.  Choynski,  95 


INSTRUCTIONS.  407 

weigh,  examine  and  take  the  testimony  of  the  defendant, 
who  testifies  in  his  own  behalf,  into  consideration  the  same 
as  other  witnesses,  for  the  jury  is  the  exclusive  judge  of 
the  weight  of  his  testimony  as  well  as  of  other  witnesses." 

ON    DISTRUSTING   WITNESSES. 

On  all  proper  occasions  the  court  should  instruct  the  jury 
that  a  witness  who  is  false  in  one  part  of  his  testimony  is  to 
be  distrusted  in  others,  and  where  the  crime  with  which  the 
accused  is  charged  can  be  established  only  by  means  of  the 
testimony  of  an  accomplice,  it  is  a  proper  occasion  for  the 
court  in  the  discharge  of  its  duty  to  protect  the  accused, 
to  call  attention  of  the  jury  to  the  well  known  fact  that 
the  testimony  of  an  accomplice  ought  to  be  viewed  with 
distrust.^  An  instruction  upon  distrusting  witnesses  is  not 
made  erroneous  by  additions  of  explanatory  remarks  as  to 
the  meaning  of  the  rule,  when  such  remarks  are  correct.^ 
It  is  not  necessary  that  the  false  testimony  was  wilfully 
given  for  the  jury  to  distrust  the  witness;^  but  the  addition 
of  the  word  "wilful"  does  not  render  an  instruction 
erroneous.*  The  jury  may  be  told  that  they  may  reject  the 
whole  testimony  of  such  a  witness,^  but  they  are  not  bound 
to  do  so.*^     The  rule  does  not  require  the  absolute  rejection 

Cal.  640;  People  v.  Stanton,  106  Cal.  139;  People  v. 
Anderson,  105  Cal.  32;  People  v.  Van  Ewan,  111  Cal. 
144;  People  v.  Ellenwood,  119  Cal.  171;  People  v.  Hitch- 
cock, 104  Cal.  486;  People  v.  Murray,  86  Cal.  31;  People 
V.  Christensen,  85  Cal.  568. 
91  People  V.  Cowgill,  93  Cal.  596;  People  v.  Rodundo,  44 
Cal.  538;  People  v.  McLean,  84  Cal.  482. 

1  People  V.  Bonney,  98  Cal.  278. 

2  People   V.   Sternberg,   127   Cal.   510. 

3  People  V.  Treadwell,  69  Cal.  226;  People  v.  Flynn,  73 
Cal.  516;  People  v.  Howard,  111  Cal.  655;*  People  v. 
Luchetti,  119  Cal.  508;  People  v.  Righetti,  66  Cal.  184; 
People  V.  Ah  Sing,  95  Cal.  656;  People  v.  Colvin,  118 
Cal.   352. 

■i  People  V.  Luchetti,    119   Cal.   501. 

5  People  V.  Sprague,  53  Cal.  491;  People  v.  Hicks,  53  Cal. 
355;  People  v.  Soto,  59  Cal.  3B9;  People  v.  Righetti,  66 
Cal.  185;  White  v.  Disher,  '*67  Cal.  403;  People  v. 
Treadwell,  69  Cal.  238;  People  v.  Clark,  84  Cal.  583;  Peo- 
ple V.  Oldham,  111  Cal.  655;  People  v.  Paulsell,  115  Cal. 
6;  People  v.  Luchetti,  119  Cal.  507;  People  v.  Flynn,  73 
Cal.   516. 

6  People  V.  Hicks,  53  Cal.  355;  People  v.  Oldham,  111  CaL 
655. 


4D8  CRIMINAL  LAW  AND  PROCEDURE. 

of  the  testimony  of  such  witnesses/  and  is  not  appHcable  to 
a  witness  who  makes  an  innocent  mistake.®  The  court  is 
not  authorized  to  single  out  a  particular  witness  in  such  an 
instruction."  The  instruction  should  be  that  a  witness  wil- 
fully false  in  one  part  of  his  testimony  is  to  be  distrusted 
in  others,"  conforming  to  the  exact  language  of  section 
2061  of  the  Code  of  Civil  Procedure.^^  The  important 
element  is  that  the  wilfully  false  testimony  be  on  a  material 
matter.  ^^ 

ERRONEOUS    INSTRUCTIONS    FOLLOWED    BY    PROPER    ONES. 

Erroneous  instructions  followed  by  a  correct  statement 
of  the  law  afterwards  aro  not  cured/^  but  instructions 
which  are  merely  defective,  when  followed  by  proper  and 
correct  instructions  on  the  same  point,  are^* 

CONSTRUCTION. 

Instructions  must  be  taken  as  a  whole  in  considering 
their  correctness.^     Each  sentence  of  a  charge  to  the  jury 

7  People  V.  Hicks,  53  Cal.  354;  White  v.  Disher,  67  CaL 
403;  People  v.  Paulsell,  115  Cal.  6;  People  v.  Treadwell, 
69  Cal.  238. 

8  People  V.  Strong,  30  Cal.  151;  People  v.  Sprague,  53 
Cal.  494;  People  v.  Soto,  59  Cal.  369;  White  v,  Disher, 
67  Cal.  403. 

9  People  V.  Arlington,  131  Cal.  231;  People  v.  Paterson, 
124  Cal.  102;  Thomas  v.  Gates,  126  Cal.  1. 

10  Sec.  2061  Code  of  Civil  Procedure;  People  v.  Flynn,  73 
Cal.  515;   People  v.  Luchetti,  119  Cal.  508. 

11  People  V.  Paulsell,  115  Cal.  6;  People  v.  Plyler,  121 
Cal.  160;  People  v.  Flynn,  73  Cal.  511;  White  v.  Disher, 
67  Cal.  403;   People  v.  Sprague,  53  Cal.  494. 

12  People  V.  Plyler,  121  Cal.  160;  People  v.  Sprague,  53  Cal. 
494;  People  v.  Soto,  59  Cal.  368;  People  .v.  Lon  Yeck, 
123  Cal.  246;  People  v.  Treadwell,  69  Cal.  226;  People 
V.  Ah  Sing,  95  CaL  656. 

13  People  V.  Wong  Ah  Ngow,  54  Cal.  151;  People  v.  Messer- 
smith,  57  Cal.  576;  People  v.  Bush,  65  Cal.  129;  People 
v.  Thomson,  92  Cal.  512.  It  is  held  in  People  v.  Moore, 
8  Cal.  90,  that  giving  an  erroneous  instruction,  subse- 
auently  corrected  by  a  proper  one,  so  that  the  jury  is 
not  misled,  is  not  a  ground  for  a  new  trial. 

14  People  V.  Ye  Park,  62  Cal.  204. 

1  People  V.  Leonard,  106  Cal.  302;  People  v.  Armstrong, 
114  Cal.  573;  People  v.  Fehrenbach,  102  Cal.  394;  People 
V.  Brlttan,  118  Cal.  409;  People  v.  Anderson,  105  Cal. 
32;  People  v.  Lee  Chuck,  78  Cal.  317;  People  v.  Kern- 
aghan,  72  Cal.  612;   People  v.  Gibson,  106  Cal.  475;  Peo- 


INSTRtrCTIONS.  409 

need  not  contain  all  the  conditions  and  limitations  ;^  it  is 
sufficient  if,  when  taken  together,  and  without  straining 
any  portion  of  the  language  the  instructions  harmonize  and 
fairly  and  correctly  state  the  law  applicable,  though  one 
of  the  instructions  fails  to  contain  all  of  the  limitations 
and  conditions,  which  are  to  be  gathered  from  the  entire 
text.^  Where  the  instructions  fairly  state  the  law,  errors 
in  particular  ones*  and  mere  technicalities  will  be  disre- 
garded." Conflicting  instructions  must  be  read  in  connec- 
tion with  the  context."  But  this  rule  does  not  apply  to  an 
incorrect  statement  of  law  in  any  particular  instruction.'' 
Where  an  instruction  is  proper  for  one  purpose,  but  not 
for  another,  it  should  be  limited  to  the  purpose  for  which 
it  is  competent.*  Thus  where  an  erroneous  instruction  was 
given,  as  to  larceny,  in  a  robbery  case,  and  a  correct  one 
given  as  to  robbery,  it  is  not  ground  for  reversal.^  Where 
error  is  on  an  immaterial  fact,  or  in  an  unnecessary  part, 
it  is   disregarded.^"     Surplusage   does  not  vitiate. ^^     It  is 

pie  V.  Doyell,  48  Cal.  85;  People  v.  Welch,  49  Cal.  182; 
People  V.  Nelson,  56  Cal.  81;  People  v.  Gray,  61  Cal. 
182;  People  v.  Morine,  61  Cal.  370;  People  v.  Hurtado, 
63  Cal.  292;  People  v.  McCurdy,  68  Cal.  582;  People  v. 
Mize,  80  Cal.  41;  People  v.  Clark,  84  Cal.  583;  People  v. 
Worden,  113  Cal.  569;  People  v.  Cleveland,  49  Cal.  577; 
People  V.  Chun  Heong,  86  Cal.  329;  People  v.  Bruggy, 
93  Cal.  476;  People  v  Dole,  122  Cal.  499;  People  v.  Leary, 
105  Cal.  486;  People  v.  Hecker,  109  Cal.  452;  People 
V.  Bagnell,  31  Cal.  410. 

2  People  V.  Neber,  125  Cal.  560;  People  v.  Doyell,  48  Cal. 
85;  People  v.  Worden,  113  Cal.  569. 

3  People  V.  Hurtado,  63  Cal.  288;  People  t.  Clark,  84  Cal. 
583;    People   v.    Nelson,    56   Cal.    77. 

i  People  V.   Tomlinson,  66  Cal.   344. 

■'•  People  V.  Moore,  8  Cal.  90. 

'■  People  y.  Turcott,  65  Cal.  126;  People  v.  Hecker,  109 
Cal.  466. 

"  People  V.  Westlake,  124  Cal.  452;  People  v.  Casey,  65 
Cal.  270;  People  v.  Wong  Ah  Ngow,  54  Cal.  151;  People 
V.  Bush,  65  Cal.  129;  People  v.  Marshall,  112  Cal.  422. 

8  People  V.  Collins,  48  Cal.  277;  People  v.  Ah  Yute,  53 
Cal.   615. 

9  People  V.  Riley,  65  Cal.  107. 

1"  People  v.   Ye  Park,   62   Cal.  204;    People  v.   Ah  Loy,  57 

Cal.  566:    People  v.  Winters.  93  Cal.  282. 
11  People  V.  Flores,   64   Cal.   426. 


410  CRIMINAL    LAW    AND    PROCEDURE. 

presumed  that  the  jury  understood  the  charge  of  the  court 
in  its  connected  relation." 

MODIFICATION  BY  THE  COURT. 

The  instructions  should  be  given,  when  requested,  if  they 
are  applicable  to  any  testimony  in  the  case/^  and  in  the 
words  in  which  they  are  requested,  if  they  are  correct," 
but  the  court  may  alter,  amend  or  modify  them."  A 
strong  coloring  favorable  to  the  defendant  is  not  ground 
for  refusal.  If  they  state  the  law  correctly  it  is  better  for 
the  court  to  give  an  instruction  with  modifications,  although 
no  error  may  be  committed  by  refusing  it.^"  Instructions 
in  the  language  of.  the  statute  may  be'  used.^^ 

READING    STATUTES    AND   DECISIONS. 

It  is  not  error  to  read  the  statutes  and  decisions  of  the 
Supreme  Court  to  the  jury,  where  no  exceptions  are 
taken,^^  but  it  is  not  proper  for  the  court  to  read  from 
opinions  of  the  Supreme  Court  in  other  cases  as  to  what  is 
not  the  law.  The  court  should  state  only  what  the  law  is.^* 
The  reading  of  decisions  or  opinions  from  the  Supreme 
Court  in  other  cases  is  a  dangerous  practice  in  any  event,^** 
and  is  not  commendable.^^     The  court  may  read  sections 

12  People  V.  Bagnell,  6l  Cal.  410;  People  v.  Gray,  61  Cal. 
182;  People  v.  Clark,  84  Cal.  583;  People  v  Bruggy,  9a 
Cal.  484. 

13  People  V.  Taylor,  36  Cal.  255;  People  v.  Silva,  121  Cal. 
668;  People  v.  Demasters,  105  Cal.  669;  People  v.  Heck- 
er,  109  Cal.  460. 

14  People  V.  Williams,  17  Cal.  142. 

15  People  V.  Hall,  94  Cal.  595;  People  v.  Barney,  114  Cal. 
554;  People  v.  Kaiser,  119  Cal.  456;  People  v.  Dodge, 
30  Cal.  448;  People  v.  Williams,  32  Cal.  288;  People  v. 
Davis,  47  Cal.  93;  People  v.  Cotta,  49  Cal.  166;  People 
V.  Dennis,  39  Cal.  625;  People  v.  Nelson,  56  Cal.  81; 
People  V.  Gray,  61  Cal.  181;  People  v.  Morine,  61  Cal. 
367. 

i«  People  V.  Williams,  32  Cal.  280. 

17  People  V.  Henderson,  28  Cal.  466. 

18  People  V.  Galvin,  9  Cal.  116. 

i»  People  V.  Paulsen,  115  Cal.  6. 

20  People  V.  McNabb,  79  Cal.  419;  People  v.  Paulsell,  115 
Cal.   6. 

21  People  V.  Holmes,  118  Cal.   444. 


INSTRUCTIONS.  411 

of  the  code  to  the  jury^^  and  designate  the  sections  by  num- 
bers,^^  but  where  code  sections  are  read  they  should  be 
taken  down  by  the  court  reporter.^*  Counsel  should  not  be 
permitted,  however,  to  read  from  law  books ;  it  is  the  duty 
of  the  court  to  give  the  law.^° 

CONTRADICTIONS,    INCONSISTENCY    AND    AMBIGUITY. 

Contradictory  instructions  are  fatal  and  grounds  for 
a  new  trial, ^^  but  not  where  they  do  not  prejudice  the 
substantial  rights  of  the  defendant  or  operate  injuriously 
to  him.^^  But  confused  instructions  which  are  so  ambigu- 
ous as  clearly  to  prejudice  the  defendant  will  warrant  a 
reversal, ^^  though  ambiguity  caused  by  mere  grammatical 
errors  is  not  fatal.-"  While  inconsistent  instructions  are 
grounds  for  a  neW  trial,^*^  a  mere  want  of  perspicuity  which 
does  not  injure  the  defendant  is  not.^^  Neither  are  mean- 
ingless instructions  where  the  jury  is  not  misled  thereby.^^ 

REPETITION. 

It  is  only  necessary  for  the  court  to  give  instructions 
which  embody  the  law  of  the  case;  it  is  not  necessary  to 
give  other  instructions  which  also  embody  the  law,^^  and 

22  People  V.  Shaughnessy,  110  Cal.  598;  People  v.  White, 
116   Cal.   19. 

23  People  V.  Mortier,  58  Cal.  262;  People  v.  Brown,  59  Cal. 
354;    People  v.  Lewis,  64  Cal.  404. 

24  People  V.  Brown,  59  Cal.  354. 

25  People  V.  Anderson,  44  Cal.  65;  People  v.  Treadwell,  69 
Cal.  239. 

20  People  V.  Wreden,  59  Cal.  392;  People  v.  Hamilton,  62 
Cal.  384;  People  v.  Campbell,  30  Cal.  312;  People  v. 
Pearne,  118  Cal.  154;  People  v.  Thomson,  92  Cal.  506; 
People  V.  Valencia,  43  Cal.  552;  People  v.  Messersmith, 
57  Cal.  575;  People  v.  Anderson,  44  Cal.  69;  People  v. 
Bush,  65  Cal.   134. 

27  People  V.  Smith,  59  Cal.  601;  People  v.  Ah  Luck,  62  Cal. 
503;  People  v.  Velarde,  59  Cal.  457;  Dennison  v.  Chap- 
man, 105  Cal.  447. 

28  People  V.  Maxwell,  24  Cal.  14;  People  v.  Monahan,  59 
Cal.  389;   People  v.  Phillips,  70  Cal.  63. 

20  People  V.  Alsemi,  85  Cal.  434. 

30  People  V.  Ward,  105  Cal.  652. 

31  People  V.  Moore,  8  Cal.  90. 

32  People  V.  Angeles,  61  Cal.  188. 

33  People  V.  Kelly,  28  Cal.  424;  People  v.  Dodge,  30  Cal. 
450;  People  v.  Ramirez,-  56  Cal.  338;  People  v.  Etting, 
99  Cal.  578. 


412  CRIMINAL  LAW  AND  PROCEDURE. 

a  refusal  to  give  instructions  already  given  in  substance 
is  not  error.^*  Instructions  when  once  given  need  not  be 
repeated,^^  but  the  safer  course  is  for  the  court  not  to  refuse 
any  instruction  asked  on  behalf  of  a  defendant,  if  it  cor- 
rectly states  the  law,^"  as  a  refusal  to  give  instructions 
warranted  by  evidence,  is  a  vital  error,^^  and  it  is  better  to 
repeat  instructions  than  to  run  the  risk  of  error  by  refus- 
ing.^* 

REQUESTED    INSTRUCTIONS. 

A  failure  to  instruct  on  a  given  point  is  not  error  when 
instructions  thereon  are  not  requested  by  the  defend- 
ant.^^    If   the   defendant   wants    further   instructions  upon 

3*  People  V.  Murray,  41  Cal.  66;  People  v.  Ah  Chung,  54 
Cal.  403;  People  v.  Durrant,  116  Cal.  179;  People  v. 
Cochran,  61  Cal.  548;  People  v.  O'Brien,  78  Cal,  41; 
People  V.  Elliott,   119  Cal.  594. 

36  People  V.  Barney,  114  Cal.  554;  People  v.  Williams,  32 
Cal.  280;  People  v.  Bush,  71  Cal.  602;  People  v.  Chaves, 
122  Cal.  134;  People  v.  Van  Horn,  119  Cal.  324;  People 
V.  Schmidt,  106  Cal.  48;  People  v.  Douglass,  100  Cal.  1; 
\  People  V.  Cowgill,  93  Cal.  596;  People  v.  Rodley,  131 
Cal.  240;  People  v.  De  Graaff,  127  Cal.  676;  People  v. 
Quinn,  127  Cal.  542;  People  v.  Hope,  62  Cal.  291;  People 
V.  Swalm,  80  Cal.  46;  People  v.  Madden,  76  Cal.  521; 
People  V.  Elliott,  119  Cal.  594;  People  v.  Treadwell,  69 
Cal.  226;  People  v.  Varnum,  53  Cal.  630;  People  v.  Ah 
Chung,  54  Cal.  403;  People  v.  Lenon,  79  Cal.  625;  Peo- 
ple V.  Giancoli,  74  Cal.  642;  People  v.  McCoy,  71  Cal. 
395;  People  v.  Pacheco,  70  Cal.  473;  People  v.  Doane,  77 
Cal.  560;  People  v.  Fine,  77  Cal.  147;  People  v.  Walters, 
98  Cal.  138;  People  v.  Samonset,  97  Cal.  448;  People  v. 
Bene,  130  Cal.  159;  People  v.  Barthleman,  120  Cal.  7; 
People  V.  Kloss,  115  Cal.  567;  People  v.  Roemer,  114 
Cal.  51;  People  v.  McNamara,  94  Cal.  509;  People  v. 
Neary,  104  Cal.  373;  People  v.  Honey,  100  Cal.  375. 

36  People  V.  Lachanais,  32  Cal.   434. 

37  People  V.  Adams.  85  Cal.  231. 

38  People  V.  Strong,  30  Cal.  151. 

30  PeoDle  V.  Guidiee.  73  Cal.  226;  People  v.  Barney,  114 
Cal.  558;  People  v.  Arnold,  116  Cal.  688:  People  v. 
Northey,  77  Cal.  618;  People  v.  Bruggy,  93  Cal.  485; 
People  V.  Fice,  97  Cal.  460;  People  v.  Oliveria,  127  Cal. 
376;  People  v.  Haun,  44  Cal.  96;  People  v.  Ah  Wee,  48 
Cal.  239;  People  v.  Gray,  66  Cal.  277;  People  v.  Flynn, 
73  Cal.  514;  People  v.  Olsen,  80  Cal.  128;  People  v. 
McLean.  84  Cal.  483;  People  v.  Marks,  72  Cal.  46;  Peo- 
ple V.  Dollor,  89  Cal.  517;  People  v.  Brittan,  118  Cal. 
409;  People  v.  Appleton,  120  Cal.  250;  People  v.  Frank- 
lin. 70  Cal.  641;  People  v.  Winthrop,  118  Cal.  91;  People 
V.   Wallace,   109  Cal.   611;    People  v.   Gray,  66  Cal.   271; 


INSTRUCTIONS.  4|^ 

any  point  he  should  ask  for  them.*^  It  is  the  duty  of  the 
court  to  give  of  its  own  motion  only  a  few  general  instruc- 
tions applicable  to  the  law  of  the  case.*^  The  court  may 
require  written  instructions  asked  for  to  be  handed  to  it 
before  argument,  in  the  absence  of  any  injury  being  shown 
to  the  defendant,*^  but  not  where  compliance  with  such  a 
rule  works  injury  to  a  party. *^  The  jury  may  take  the 
instructions  with  them  to  the  jury  room,**  but  the  practice 
is  to  take  only  the  ones  given  them,  not  those  refused.*"^ 
The  court  may  recall  the  jury  for  further  instructions 
without  any  request  on  their  part.*^^  The  request  by  the 
jury  for  further  instructions  does  not  confine  the  court  to 
the  points  upon  which  instructions  are  asked,  provided  the 
language  used,  though  not  the  best  that  could  hare  been 
used,  was  not  such  that  the  jury  could  have  been  misled, 
and  the  court  may  instruct  upon  such  further  points  as  it 
sees  fit.*®  Exceptions  to  the  instructions  may  be  made  at 
the  trial.*"  Instructions  favorable  to  the  defendant, 
although  verging  on  error,  do  not  entitle  to  a  new  trial.** 
The  defendant  cannot  complain  upon  appeal  of  error  in 
instructions  given  at  his  own  request.*"  But  where  the 
instructions  are  confessedly  erroneous,  they  are  not  cured 
by  a  showing  that  the  defendant  requested  similar  instruc- 
tions.'^" 

People  V.  Christensen,  85  Cal.  571;  People  v.  McNutt, 
93  Cal.  658;  People  v.  Ahern,  93  Cal.  519;  People  v.  Mar- 
shall, 120  Cal.  70. 

40  People  V.  Byrnes,   30   Cal.   207. 

41  People  V.  Williams,  32  Cal.  285. 

42  People  V.  Sears,    18    Cal.    635;    People    v.    Williams,    32 
Cal.  289. 

43  People  V.  Demasters,   105  Cal.   669;    People  v.   Silva,  121 
Cal.    670. 

44  People  V.  Cummings,    57    Cal.    89. 

45  People  V.  Barthleman,  120  Cal.  7. 

45a  People  V.  Perry,  65  Cal.   568;    Penal  Code   1138. 

46  People  V.  M'Kay,  122  Cal.  628. 

4T  People  V.  Chu    Quong,    15    Cal.    332. 

48  People  V.  Messersmith,    61   Cal.    246;    People   v.    Lundin, 

120  Cal.  308;    People  v.  Turcott,  65  Cal.  126. 
40  People  V.  Rangod,   112  Cal.   669;    People  v.   Holmes,   126 

Cal.   462;    People   v.   Lon  Yeck,   123   Cal.   246;    People  v. 

Lopez,  59  Cal.  362. 
50  People  V.  Cole,  127  Cal.  545. 


414  CRIMINAL  LAW  AND  PROCEDURE. 

APPLICATION    TO    FACTS. 

Instructions  must  be  based  upon  the  testimony  in  the  case, 
and  must  be  applicable  to  the  facts,  and  justified  by  the 
evidence,"^  or  based  upon  a  theory  logically  deducible  from 
the  facts, °^  and  not  upon  a  hypothetical  case.**^  But  an 
instruction  on  the  hypothesis  of  guilt  may  be  proper,"*  pro- 
vided it  does  not  invade  the  province  of  the  jury,"^"  yet  the 
practice  of  giving  such  instruction  is  not  commendable." 
And  an  instruction,  if  legally  correct,  based  on  the  hypo- 
thesis of  the  truth  of  the  defendant's  testimony,  is  proper,"'' 
but  abstract  statements  of  the  law,  which  can  serve  no 
useful  purpose,  are  always  improper,  and  should  be 
refused.^*  Errors  upon  merely  abstract  principles  of  law 
will  not  be   reviewed.^"     Inapplicable  instructions  tending 

61  People  V.  Arnold,  15  Cal.  477;  People  v.  Byrnes,  30  Cal. 
207;  People  v.  Best,  o.  Cal.  691;  People  v.  Atherton,  51 
Cal.  495;  People  v.  Sanchez,  24  Cal.  28;  People  v.  Coch- 
ran, 61  Cal.  548;   People  v.  Hecker,  109  Cal.  452;   People 

.  V.  Brown,  130  Cal.  592;  People  v.  Davis,  47  Cal.  93; 
People  V.  Turley,  50  Cal.  469;  People  v.  Lee  Gam,  69 
Cal.  552;  People  v.  Chavez,  103  Cal.  408;  People  v.  Mur- 
back,  64  Cal.  371;  People  v.  Williams,  32  Cal.  280;  Per- 
kins V.  Eckert,  55  Cal.  405;  People  v.  Murphy,  47  Cal. 
103;  People  v.  Ramirez,  56  Cal.  533;  People  v.  Bird,  60 
Cal.  7;  People  v.  Barry,  90  Cal.  41;  People  v.  Hartman, 
130  Cal.  488;  People  v.  Worthington,  122  Cal.  583;  Peo- 
ple V.  Bourke,  66  Cal.  456;  People  v.  Juarez,  28  Cal. 
380;  People  v.  March,  6  Cal.  543;  People  v.  Gleason,  122 
Cal.  370;  People  v.  Devine,  95  Cal.  227;  In  re  Calkins, 
112  Cal.  296;  People  v.  Fellows,  122  Cal.  233;  People  v. 
Oldham,  111  Cal.  648. 

62  People  V.  Sanchez,  24  Cal.  17;  People  v.  Byrnes,  30  Cal. 
207;  People  v.  Best,  39  Cal.  691;  People  v.  Atherton,  51 
Cal.  498;   People  v.  Bourke,  66  Cal.  456. 

63  People  V.  Byrnes,  30  Cal.  207;  People  v.  Taylor,  36  Cal. 
255;  People  v.  Atherton,  51  Cal.  598;  People  v.  Gilbert, 
60   Cal.   109. 

64  People  V.  Bruggy,  93  Cal.   477. 

65  People  V.  Westlake,  62  Cal.  303;  People  v.  Lemperle,  94 
Cal.  46;  People  v.  Hill,  116  Cal.  568;  People  v.  Milner, 
122  Cal.  181. 

56  People  V.  Dixon,  94  Cal.  255. 

57  People  V.  Keefer,  65  Cal.  234;  People  v.  Hecker,  109 
Cal.   460. 

68  People  V.  Smith,  105  Cal.  676;  People  v.  M'Kay,  122  Cal. 
629;  People  v.  Roberts,  6  Cal.  214;  People  v.  March,  6 
Cal.  548;  People  v.  Best,  39  Cal.  691;  People  v.  Williams, 
43  Cal.  351:   People  v.  Gibbs,  98  Cal.  661. 

68  People  V.  Walsh,  43  Cal.  447. 


INSTRUCTIONS.  415 

to  confuse  the  jury,  are  reversible  error,^°  as  where  instruc- 
tions are  given  on  circumstantial  evidence  when  all  the 
evidence  in  the  case  is  direct.^^  Argumentative  instruc- 
tions are  not  permitted/'-  In  the  absence  of  a  bill  of  excep- 
tions which  contains  the  evidence  in  the  case,  or  an  authen- 
tication by  an  endorsement  of  the  judge,  showing  his  action 
on  the  instructions,  the  appellate  court  will  presume  that  the 
instructions  given  were  correct  if  they  are  applicable  to  any 
conceivable  state  of  facts,*'^  but  where  they  are  wrong  under 
every  conceivable  state  of  facts,  the  court  will  review  with- 
out a  bill  of  exceptions  or  authentication  by  the  judge.^* 
It  is  not  good  practice  to  instruct  the  jury  as  to  the  purpose 
or  object  of  the  statute*'"  as  to  the  nature  of  the  offense 
charged  f^  that  it  is  safer  to  err  in  favor  of  the  defendant," 
or  that  as  jurors  they  are  not  bound  to  believe  what  they 
believe  as  men.*'®  Instructions  can  only  be  reviewed  from 
their  contents,  and  the  manner  of  the  judge  in  giving  them 

CO  People  V.  Devine,  95  Cal.  227;  People  v.  Gleason,  122 
Cal.  372. 

61  People  V.  Turner,  65  Cal.  540;  People  v.  Sheldon,  68  Cal. 
438. 

62  People  V.  Barney,   114  Cal.   554. 

63  People  V.  Whitney,  53  Cal.  420;  People  v.  Worden,  113 
Cal.  576;  People  v.  Dick,  32  Cal.  213;  People  v.  Smith, 
57  Cal.  130;  People  v.  Donguli,  92  Cal.  609;  People  v. 
Ferguson,  34  Cal.  309;  People  v.  Clark,  84  Cal.  581; 
People  V.  O'Leary,  77  Cal.  30;  People  v.  Trim,  37  Cal. 
274;  People  v.  Bemmerly,  87  Cal.  117;  People  v.  Keeley, 
81  Cal.  212;  People  v.  O'Brien,  78  Cal.  41;  People  v. 
Beaver,  83  Cal.  419;  People  v.  Thompson,  28  Cal.  216; 
People  V.  Rogers,  81  Cal.  209;  People  v.  Marseiler.  70 
Cal.  98;  People  v.  Martin,  32  Cal.  92;  People  v.  Tee- 
herow,  40  Cal.  286;  People  v.  Bourke,  66  Cal.  455;  Peo- 
ple V.  Johnson,  61  Cal.  142;  People  v.  Padillia,  42  Cal. 
538;  People  v.  January,  77  Cal.  179;  People  v.  Ah  Lee 
Doon,  97  Cal.  175;  People  v.  Clark,  106  Cal.  36;  People 
V.  Wallace,  107  Cal.  137;  People  v.  Ludwig,  118  Cal. 
329. 

64  People  V.  Strong,  46  Cal.  303;  Peonle  v.  Donahue,  45 
Cal.  321;  People  v.  King,  27  Cal.  507;  People  v.  Torres, 
38  Cal.  143;  People  v.  Dick,  32  Cal.  215;  S.  C,  34  Cal. 
665;   People  v.  Brotherton,  47  Cal.  404;   People  v.  Smith, 

■57  Cal.  131:  People  v.  Gilbert.  60  Cal.  112. 

65  People  V.  Slater,  119   Cal.   620. 

66  People  V.  Brennan,  121  Cal.  495. 

07  People  V.  Durrant,  116  Cal.  179;   People  v.  Findley,  132 

Cal.  301. 
68  People  V.  Ammerman,  118  Cal.  24. 


416  CRIMINAL  LAW  AND  PROCEDURE. 

cannot  be  considered  upon  appeal,  unless  his  misconduct 
is  made  to  appear  in  the  mode  prescribed  by  the  code."' 

MUST    BE    IN    WRITING. 

The  court  cannot  give  oral  instructions  without  the  con- 
sent of  the  accused.""  but  where  it  is  on  an  immaterial  mat- 
ter it  is  not  reversible  error  ;'^^  such  as  a  conversation  by  the 
court  with  the  jury  as  to  verdict,  not  prejudicial  to  the 
defendant.''-  Oral  instructions  cannot  be  given  even  after 
the  jury  has  returned  for  further  instructions,'*  nor  can 
modifications  of  instructions  be  so  given.'*  Oral  instruc- 
tions must  be  reduced  to  writing  by  the  judge,  or  other  per- 
son, or  taken  down  by  the  shorthand  reporter."  Instruc- 
tions need  not  be  in  writing  if  taken  down  by  the  reporter." 
The  oral  directions  to  the  jury  to  return  and  fix  the  degree, 
is  not  a  charge  necessary  to  be  in  writing."'  Oral  instruc- 
tions may  be  given  with  the  express  consent  of  the  accused, 
or  by  the  mutual  consent  of  the  parties,'^  but  the  record 
must  show  such  consent,'®  as  it  cannot  be  presumed,  even 

69  People  V.  De  Graaff,  127  Cal.  678. 

10  People  V.  Hersey,  53  Cal.  574;  People  v.  Carrlllo,  70  Cal. 
645;  People  v.  Cox,  76  Cal.  282;  People  v.  Leary,  105 
Cal.  497;  People  v.  Prospero,  44  Cal.  186;  People  v. 
Beeler,  6  Cal.  247;  Penal  Code  1127;  People  v.  Payne,  8 
Cal.  344;  People  v.  Trim,  37  Cal.  276;  People  v.  San- 
ford,  43  Cal.  35;  People  v.  Ah  Fong,  12  Cal.  347;  People 
V.  Woppner,  14  Cal.  438;  People  v.  Chares,  26  Cal.  79. 

71  People  V.  Jackson,  57  Cal.  316;  People  v.  Beck.  58  Cal. 
214. 

72  People  V.  Leary,  105  Cal.  487. 

73  People  V.  Woppner,  14  Cal.  437;  People  v.  Chares,  26 
Cal.  79;  People  v.  Trim,  37  Cal.  276. 

74  People  V.  Payne,  8  Cal.  341;  People  v.  Woppner.  14  Cal. 
438;  People  v.  Chares,  26  Cal.  79;  People  v.  Trim,  37 
Cal.  276;  People  v.  Stanford,  43  Cal.  35;  People  v.  Mer- 
sey, 53  Cal.  575;    Penal  Code  1093. 

75  People  V.  Carrillo,   70   Cal.   643. 

76  People  V.  Curtis,  76  Cal.  57;  People  v.  Cox,  76  Cal.  281; 
People  V.  Hersey,  53  Cal.  575;  People  v.  Prospero,  44 
Cal.  186;  Penal  Code  1093. 

77  People  V.  Bonney,  19  Cal.  427;  People  v.  Jackson,  57 
Cal.  317. 

78  People  V.  Bumberger,  45  Cal.  650;  People  v.  Kearney, 
43  Cal.  383. 

79  People  V.  Trim,  37  Cal.  274. 


INSTRUCTIONS.  41 T 

where  the  defendant  is  present  and  does  not  object.*"  It 
is  the  duty  of  the  court  to  certify  oral  instructions,  when 
taken  down  by  the  reporter  and  written  out,  so  as  to  make 
them  a  part  of  the  record. ^^  The  appellate  court  will  not 
presume,  however,  that  the  instructions  were  oral  because 
the  record  does  not  state  affirmatively  that  they  were  in 
writing.^^  The  presumption  is  the  other  way,  and  unless 
the  record  affirmatively  shows  the  contrary,  the  court  will 
presume  they  were  in  writing,®^  or  were  taken  down  by  the 
reporter.** 

AUTHENTICATION. 

It  is  the  duty  of  the  court  to  certify  the  instructions  so 
as  to  make  them  a  part  of  the  record.*^  They  should  be 
signed  by  the  judge  and  marked  whether  given  or  refused.** 
But  instructions  given  by  the  court  of  its  own  motion,  need 
not  be  marked.  It  is  sufficient  if  it  appears  that  the 
charge  was  given. ^'^  The  reason  for  the  refusal  to  give 
an  instruction  need  not  be  given,**  except  where  it  was 
refused  upon ,  the  ground  that  it  had  been  already  given, 
when  the  reason  for  refusal  must  be  stated  and  the  refusal 
must  be  based  on  that  ground  alone.*^  But  this  rule  is 
qualified  to  the  extent  that  the  instructions  asked  for  be 
free  from  objections. "^ 

DEFINITIONS   AND   GENERAL    PRINCIPLES. 

In  every  crime  or  public  offense  there  must  exist  a  union 

80  People  V.  Sanford,  43  Cal.  29;  People  v.  Prospero,  44  Cal. 
186;  People  v.  Chares,  26  Cal.  79;  People  v.  Leary,  105 
Cal.,  502. 

81  People  V.  Clark,  106  Cal.  32. 

82  People  V.  Wright,  45  Cal.  260. 

83  People  V.  Garcia,  25  Cal.  532;  People  v.  Shuler,  28  Cal. 
496;  People  v.  Chung  Lit,  17  Cal.  321;  People  v.  Bum- 
berger,  45   Cal.  650;    People  v.   McGregar,  88  Cal.   140. 

84  People  V.  Ferris,  56  Cal.  442;  People  v.  Bourke,  66  Cal. 
457;    People  v.  Ludwig,  118  Cal.  329. 

85  People  V.  Clark,  106  Cal.  32. 

86  People  V.  Lockwood,   6   Cal.   205;    Penal   Code   1127. 

87  People  V.  Samsels,  66  Cal.  100. 

88  People  V.  Sears,  18  Cal.  635;  People  v.  Garcia,  25  Cal. 
531;  People  v.  Shuler,  28  Cal.  460;  People  v.  Chares,  26 
Cal.  78;    People  v.  Bonney,  49  Cal.  426. 

80  People  V.  Williams,  17  Cal.  143;  People  v.  Hurley,  8  Cal. 

390;   People  v.  Ramirez,  13  Cal.  173. 

80  People  V.  Hobson,   17   Cal.    424;  People   v.    Ramirez,    56 

Cal.  538. 

CmMES--27 


418  CRIMINAL  LAW  AND  PROCEDURE. 

or  joint  operation  of  act  and  intent,  or  criminal  negligence.* 

The  intent  or  intention  is  manifested  by  the  circumstances 
connected  with  the  offense  and  the  sound  mind  and  discre- 
tion of  the  accused.  All  persons  are  of  sound  mind  who 
are  neither  idiots  nor  lunatics  nor  affected  with  insanity.^ 

The  word  wilfully,  when  applied  to  the  intent  with  which 
:an  act  is  done  or  omitted,  implies  simply  a  purpose  or  wil- 
lingness to  commit  the  act  or  make  the  omission  referred 
to.  It  does  not  require  any  intent  to  violate  law  or  to 
injure  another  or  to  acquire  any  advantage.^ 

The  words  "  malice  "  and  "  maliciously  "  import  a  wish 
to  vex,  annoy  or  injure  another  person,  or  an  intent  to  do  a 
wrongful  act,  established  either  by  proof;  or  by  presumption 
of  law.* 

The  jury  are  not  bound  to  decide  in  conformity  with  the 
declarations  of  any  number  of  witnesses  which  do  not  pro- 
duce conviction  in  their  minds  against  a  less  number  or 
against  a  presumption  or  other  evidence  satisfying  their 
minds.'' 

A  witness  false  in  one  part  of  his  testimony  is  to  be  dis- 
trusted in  others;  that  is  to  say,  the  jury  may  reject  the 
whole  of  the  testimony  of  a  witness  who  has  wilfully  sworn 
falsely  as  to  a  material  point;  and  the  jury  being  convinced 
that  a  witness  has  stated  what  was  untrue,  not  as  the  result 
of  mistake  or  inadvertence,  but  wilfully  and  with  the  design 
to  deceive,  must  treat  all  of  his  testimony  with  distrust  and 
suspicion,  and  reject  all  unless  they  shall  be  convinced,  not- 
withstanding thei  base  character  of  the  witness,  that  he  has 
in  other  particulars  sworn  to  the  truth.® 

If  weaker  and  less  satisfactory  evidence  is  offered,  when 
it  appears  that  stronger  and  more  satisfactory  was  within 
the  power  of  the  party,  the  evidence  offered  should  be 
viewed  with  distrust.'' 

1  Penal  Code  20. 

2  Penal   Code  21. 

3  Penal  Code  7,  sub.  1. 

*  Penal  Code,   sec.  7,  sub.  4. 

n  Code  of  Civil  Procedure  2061,  sub.  2. 

6  Code  of  Civil  Procedure  2061,  sub.  3;  People  v.  Sprague, 
53  Cal.  494;  People  v.  Hicks,  53  Cal.  354. 

7  Code  of  Civil  Procedure,  2061,  sub.  7. 


APPROVED   INSTRUCTIONS.  419 

APPROVED     INSTRUCTIONS. 


ACTS— INTENT— CONSEQUENCES. 

The  court  further  instructs  the  jury,  that  every  person  is 
presumed  to  intend  the  reasonable  and  natural  consequences 
of  his  own  voluntary  acts. 

WITNESS— HOW    IMPEACHED   AND    EFFECT   OF    IMPEACH- 
MENT. 

A  witness  is  presumed  to  speak  the  truth.  This  pre- 
sumption, however,  may  be  repelled  by  the  manner  in  which 
he  testifies,  by  the  character  of  his  testimony,  or  by  evidence 
aflFecting  his  character  for  truth,  honesty  or  integrity,  or  his 
motives,  or  by  contradictory  evidence,  and  the  jury  are  the 
exclusive  judges  of  his  credibility.^ 

A  witness  may  be  impeached  by  the  party  against  whom 
he  was  called,  by  contradictory  evidence,  or  by  evidence  that 
his  general  reputation  for  truth,  honesty  or  integrity  is  bad, 
but  not  by  evidence  of  particular  wrongful  acts,  except  that 
it  may  be  shown  by  the  examination  of  the  witness,  or  the 
record  of  the  judgment,  that  he  has  been  convicted  of  a 
felony.^ 

As  you  have  already  been  instructed,  every  competent 
witness  is  presumed  to  speak  the  truth.  Whether  the  pre- 
sumption is  removed  by  evidence  is  a  matter  of  which  the 
jury  are  the  exclusive  judges.  Although  a  witness  may  be 
impeached  in  the  manner  already  stated,  yet,  it  remains 
for  the  jury  to  determine  whether  a  particular  witness  has 
told  the  truth  in  the  case,  notwithstanding  that  the  fact  may 
be  established  that  his  general  reputation  for  truth,  honesty 
and  integrity  is  bad,  or  that  his  motives  are  not  good,  or 
that  his  testimony  may  have  been  met  by  contradictory  evi- 
dence, and  the  jury  may  believe  a  witness,  notwithstanding 
proof  of  his  conviction  of  a  felony.  A  former  conviction 
does  not  necessarily  and  as  a  matter  of  law,  deprive  a  par- 
ticular witness  of  any  portion  of  the  credit  presumptively 
due  to  the  testimony  of  witnesses.^ 

1  Code  of  Civil  Procedure,  sec.  1847. 

2  Code  of  Civil  Procedure,  sec.   2051. 

3  People  V.  McLane,    60    Cal.    412. 


420  CRIMINAL  LAW  AND  PROCEDURE 

WITNESSES— ALL   MAY    NOT    BE   CALLED. 

The  court  instructs  the  jury  that  the  prosecution  is  not 
required  to  call  as  its  own  witnesses  all  persons  who  were 
shown  to  be  present.* 

WITNESS— CREDIBILITY,   HOW   DETERMINED. 

The  jury  are  instructed  that  to  the  jury  exclusively 
belongs  the  duty  of  weighing  the  evidence,  and  determining 
the  credibility  of  the  witnesses.  In  determining  the  credi- 
bility of  a  witness  the  jury  may  take  into  consideration  his 
character  and  conduct,  his  manner  upon  the  stand,  his  rela- 
tion to  the  controversy  and  to  the  parties,  if  any,  his  hopes 
or  his  fears,  his  bias  or  impartiality,  the  reasonableness  or 
unreasonableness  of  the  statements  he  makes,  the  strength 
or  weakness  of  his  recollection,  viewed  in  the  light  of  all 
the  other  testimony,  and  facts  and  circumstances  in  proof  in 
the  case. 

ACCOMPLICE— HOW   CORROBORATED. 

The  court  instructs  the  jury  that  a  conviction  cannot  be 
had  on  the  testimony  of  an  accomplice,  unless  he  is  cor- 
roborated! by  other  evidence  which  in  itself,  and  without  the 
aid  of  the  testimony  of  the  accomplice,  tends  to  connect  the 
defendant  with  the  commission  of  the  offense.  I  charge 
you  that  such  corroborative  evidence  is  not  sufficient  if  it 
merely  shows  the  commission  of  the  offense  or  the  circum- 
stances thereof.  It  must  connect  the  defendant  with  the 
commission  of  the  crime  charged.^ 

CONSPIRACY— COMMON   OBJECT. 

The  court  instructs  the  jury  that  if  you  believe  from  the 
evidence  that  the  defendants  named  in  the  information,  or 
any  two  of  them,  pursued  by  their  acts  the  same  object, 
whether  by  the  same  means  or  by  different  means,  so  as  to 
complete  it  with  a  view  to  the  attainment  of  the  same 
object,   the   jury   will   be   justified   in   the   conclusion  that 

*  People  V.  Bush,    71   Cal.   607;    People   v.    Robertson,    67 

Cal.  651. 
6  People  V.  Compton,  123  Cal.  403. 


APPROVED   INSTRUCTIONS.  421 

such  defendants  so  pursuing  the  same  object  were  engaged 
in  a  conspiracy  to  effect  that  object." 

FLIGHT— EVIDENCE  OF. 

The  flight  of  a  person  immediately  after  the  commis- 
sion of  a  crime,  or  after  a  crime  has  been  committed  with 
which  he  is  charged,  is  a  circumstance  to  be  weighed  by 
the  jury  as  tending  in  some  degree  to  prove  a  conscious- 
ness of  guilt,  and  is  entitled  to  more  or  less  weight,  accord- 
ing to  the  circumstances  of  the  particular  case.  Evidence 
of  flight  is  received,  not  as  a  part  of  the  res  gestae  of  the 
criminal  act  itself,  but  as  indicative  of  a  guilty  mind;  and 
if   you   believe   from   the   evidence   in   this   case   that   the 

defendant ,  it  is  a  circumstance  to  be  weighed  by 

you  as  tending  in  some  degree  to  prove  a  consciousness  of 
guilt.  It  is  not  sufficient  of  itself  to  establish  the  guilt 
of  the  defendant,  but  the  weight  to  which  that  circum- 
stance is  entitled  is  a  matter  for  you  to  determine  in  con- 
nection with  all  the  other  facts  and  circumstances  called 
out  in  this  case.'^ 

AS    EVIDENCE   OF    GUILT. 

If  a  person,  when  arrested  on  a  criminal  charge,  and 
after  being  informed  of  the  cause  of  his  arrest,  escapes,  or 
attempts  to  escape,  it  is  a'  circumstance  which  the  jury  may 
consider  in  determining  his  guilt  or  innocence.® 

ESCAPE. 

The  court  instructs  the  jury,  that  if  you  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant 
was  arrested  for  the  crime  charged  in  the  information, 
and  that  after  being  informed  of  the  cause  of  his  arrest, 
escaped  or  attempted  to  escape  from  the  person  having,  him 
under  arrest,  it  is  a  circumstance  that  the  jury  may  con- 
sider   in    determining   his    guilt    or    innocence.^ 

6  People  V.  Bently,  75  Cal.  409. 

7  People  V.  Bushton,  80  Cal.  163. 

8  People  V.  Strong,  46  Cal.  302. 
»  People  V.  Strong,  46  Cal.  303. 


422  CRIMINAL  LAW  AND  PROCEDURE. 

THE    DOCTRINE    OF    REASONABLE    DOUBT. 

A  defendant  in  a  criminal  action  is  presumed  to  be  inno- 
cent until  the  contrary  is  proved.  And  in  case  of  a.  rea- 
sonable doubt  whether  his  guilt  is  satisfactorily  shown,  he 
is  entitled  to  an  acquittal.^" 

REASONABLE  DOUBT. 

Reasonable  doubt  is  not  mere  possible  doubt,  because 
everything  relating  to  human  affairs  and  depending  on 
moral  evidence,  is  open  to  some  possible  or  imaginary 
doubt.  It  is  that  state  of  the  case,  which,  after  the  entire 
comparison  and  consideration  of  all  the  evidence  leaves  the 
minds  of  jurors  in  that  condition  that  they  cannot  say  they 
feel  an  abiding  conviction  fo  a  moral  certainty  of  the  truth 
of  the  charge.  The  burden  of  proof  is  upon  the  prose- 
cutor. All  the  presumptions  of  law,  independent  of  evi- 
dence, are  in  favor  of  innocence,  and  every  person  is  pre- 
sumed to  be  innocent  until  he  is  proven  guilty.  If,  upon 
such  proof,  there  is  reasonable  doubt  remaining,  the  accused 
is  entitled  to  the  benefit  of  it  by  an  acquittal.  For  it  is  not 
sufficient  to  establish  a  probability,  though  a  strong  one 
arising  from  the  doctrine  of  chances,  that  the  fact  charged 
is  more  likely  to  be  true  than  the  contrary ;  but  the  evi- 
dence must  establish  the  truth  of  the  fact  to  a  reasonable 
and  moral  certainty ;  a  certainty  that  convinces  and  directs 
the  understanding,  and  satisfies  the  reason  and  judgment 
of  those  who  are  bound  to  act  conscientiously  upon  it.^^ 

But  while  the  defendant  cannot  be  convicted  unless  his 
guilt  is  established  beyond  a  reasonable  doubt,  still  the 
law  does  not  require  demonstration;  that  is,  such. a  degree 
of  proof  as,  excluding  possibility  of  error,  produces  abso- 
lute certainty,  because  such  proof  is  rarely  possible. 
Moral  certainty  only  is  required,  or  that  degree  of  proof 
which  produces  conviction  in  an  unprejudiced  mind.^* 

10  Penal   Code,   sec.   1096. 

11  Commonwealth    v.  Webster,  5  Cushing  320. 

12  Code  of  Civil  Procedure,  sec.  1826;    Penal  Code  1108. 


APPROVED   INSTRUCTIONS.  423 

VOLUNTARY   INTOXICATION    NO    EXCUSE   FOR   CRIME. 

No  act  committed  by  a  person  while  in  a  state  of  volun- 
tary intoxication  is  less  criminal  by  reason  of  his  having 
been  in  such  condition.  But  whenever  the  actual  exist- 
ence of  any  particular  purpose,  motive  or  intent  is  a  neces- 
sary element  to  constitute  any  particular  species  or  degree 
of  crime,  the  jury  may  take  into  consideration  the  fact 
that  the  accused  was  intoxicated  at  the  time,  in  determining 
the  purpose,  motive  or  intent  with  which  he  committed  the 
act.^ 

It  is  a  well  settled'  rule  that  drunkenness  is  no  excuse  for 
the  commission  of  crime.  Insanity  produced  by  intoxi- 
cation does  not  d.estroy  responsibility  when  the  party,  when 
sane  and  responsible,  made  himself  voluntarily  intoxicated ; 
and  drunkenness  forms  no  defense  whatever  to  the  fact  of 
guilt,  for  when  a  crime  is  committed  by  a  party  while  in  a 
fit  of  intoxication,  the  law  will  not  allow  him  to  avail  him- 
self of  his  own  gross  vice  and  misconduct  to  shelter  him- 
self from  the  legal  consequences  of  such  crime.  Evidence 
of  drunkenness  in  murder  cases  can  only  be  considered  by 
the  jury  for  the  purpose  of  determining  the  degree  of  crime, 
and  for  that  purpose  it  must  be  received  with  great  cau- 
tion.- 

In  murder  in  the  first  degree  it  is  necessary  to  prove  the 
killing  was  premeditated,  which  involves,  of  course,  an 
inquiry  into  the  state  of  mind  under  which  the  party  com- 
mitted it,  and  in  the  prosecution  of  such  inquiry,  his  con- 
dition as  drunk  or  sober  is  proper  to  be  considered.  The 
weight  to  be  given  to  it  is  a  matter  for  the  jury  to  deter- 
mine, and  it  is  sufficient  for  the  court  to  say  to  the  jury 
that  it  should  be  received  with  caution,  and  carefully  exam- 
ined in  connection  with  all  the  circumstances  and  evidence 
in  the  case.''' 

1  Penal  Code  22. 

a     People  V.  Lewis,  36  Cal.  531;    People  v.  Nirhol,  34  CaL 

212;    People  v.   King,   27   Cal.   507;    People  v.  Ferris,   55 

Cal.  592;  People  v.  Jones,  63  Cal.  168. 
3  People  V.  Williams,   43   Cal.   346. 


-424  CRIMINAL  LAW  AND  PROCEDURE. 

INSANITY   AS   A    DEFENSE. 

In  prosecutions  for  crimes  the  defense  of  insanity  is 
often  interposed,  and  thereby  becomes  a  subject  of  para- 
mount importance  in  criminal  jurisprudence,  A  due  regard 
for  the  ends  of  justice  and  the  peace  and  welfare  of  society, 
no  less  than  mercy  to  the  accused,  require  that  it  should 
be  thoroughly  and  carefully  weighed.  It  is  a  plea  some- 
times resorted  to  in  cases  where  aggravated  crimes  have 
been  committed  under  circumstances  which  afford  full  proof 
of  the  overt  acts,  and  render  hopeless  all  other  means  of 
evading  punishment.  While,  therefore,  it  ought  to  be 
viewed  as  a  not  less  full  and  complete,  than  it  is  a  humane 
defense,  when  satisfactorily  established,  yet  it  should  be 
examined  into  with  great  care,  less  an  ingenious  counterfeit 
of  the  malady  furnish  protection  to  guilt. 

Insanity,  as  the  expression  is  here  used,  means  such  a 
diseased  and  deranged  condition  of  the  mental  faculties  as 
to  render  the  person  incapable  of  distinguishing  between 
right  and  wrong  in  relation  to  the  act  with  which  he  is 
charged.  An  irresistible  impulse  to  commit  an  act  which 
a  party  knows  to  be  wrong  and  unlawful  (if  it  ever  exists) 
does  not  constitute  the  insanity  which  is  a  legal  defense. 

The  standard  of  accountability  is  this :  Had  the  party 
sufficient  mental  capacity  to  appreciate  the  character  and 
<:|uality  of  the  act?  Did  he  know  and  understand  that  it 
was  a  violation  of  the  rights  of  another,  and  in  itself  wrong? 
Did  he  know  that  it  was  prohibited  by  the  laws  of  the  land, 
and  that  its  commission  would  entail  punishment  and  penal- 
ties upon  himself?  If  he  had  the  capacity  thus  to  appre- 
ciate the  character  and  comprehend  the  possible  or  probable 
consequences  of  his  act,  he  is  responsible  to  the  law  for  the 
act  thus  committed,  and  is  to  be  judged  accordingly. 

Although  it  is  true,  as  you  have  been  instructed,  that 
generally  the  burden  of  proof  is  upon  the  prosecution,  yet, 
to  this  rule  there  is  this  exception :  Where  insanity  is  relied 
upon  as  a  defense,  the  burden  of  proving  the  existence  of 
such  insanity  is  on  defendant,  and  it  is  incumbent  upon  him 


APPROVED   INSTRUCTIONS.  425 

to  establish,  by  preponderance  of  evidence,  that  he  was 
insane  at  the  time  of  committing  the  act  charged,  and  the 
evidence  of  mental  derangement  must  be  such,  in  amount, 
that  if  the  single  issue  of  sanity  or  insanity  of  the  defend- 
ant should  be  submitted  to  the  jury  in  a  civil  case  they 
must  find  that  he  is  insane.  Insanity  must  be  established 
by  a  preponderance  of  the  evidence.  Therefore,  if  you 
believe  that  the  preponderance  of  evidence  is  in  favor  of 
the  sanity  of  the  defendant,  or  that  there  is  not  a  pre- 
ponderance of  evidence  to  the  efifect  that  he  was  insane  at 
the  time  of  the  transaction  involved  herein,  you  will  act 
upon  the  hypothesis  that  he  was  sane  at  that  time,  even 
though  you  may  have  reasonable  doubts  upon  the  subject. 
And  in  considering  the  evidence  relative  to  the  defense  of 
insanity,  it  will  be  proper  for  you  to  remember  that  ordinary 
experience  teaches  us  that  the  majority  of  men  are  sane, 
and  hence  it  is  to  be  presumed,  until;  the  contrary  Is  proven 
by  a  preponderance  of  evidence,  that  the  defendant  was 
sane  at  the  time  of  the  commission  of  the  act  with  which 
he  stands  charged,  if  you  find  he  committed  such  act.* 

DEFINITIONS— MURDER   OF  THE   FIRST  AND  SECOND   DE- 
GREES,  AND    MANSLAUGHTER,    HOW    DISTINGUISHED. 

]\Iurder  is  the  unlawful  killing  of  a  human  being  with 
malice  aforethought.^ 

Such  malice  may  be  express  or  implied.  It  is  express 
when  there  is  manifested  a  deliberate  intention  unlawfully 
to  take  away  the  life  of  a  fellow  creature.  It  is  implied 
when  no  considerable  provocation  appears,  or  when  the 
circumstances  attending  the  killing  show  an  abandoned  and 
malignant  heart. ^ 

All  murder  which  is  perpetrated  by  means  of  poison  or 
lying   in    wait,   torture,    or   by   any   other   kind   of   wilful, 

*  People  V.  Dennis,  39  Cal.  637;  People  v.  Bumberger,  45 
Cal.  650;  People  v.  Messersmith,  61  Cal.  246;  People  v. 
Pico,  62  Cal.  54;  People  v.  Hoin,  62  Cal.  120;  People  v. 
Hamilton,  62  Cal.  384;   People  v.  Hurtado,  63  Cal.  288. 

1  Penal  Code  187. 

2  Penal  Code  188. 


426  CRIMINAL  LAW  AND  PROCEDURE. 

deliberate  and  premeditated  killing,  or  which  is  committed 
in  the  perpetration  or  attempt  to  perpetrate  arson,  rape, 
robbery,  burglary  or  mayhem,  is  murder  of  the  first  degree, 
and  all  other  kinds  of  murders  are  of  the  second  degree.'' 
Manslaughter  is  the  unlawful  killing  of  a  human  being 
without  malice.     It  is  of  two  kinds : 

1.  Voluntary — upon  a  sudden  quarrel  or  heat  of  passion. 

2.  Involuntary — in  the  commission  of  an  unlawful  act 
not  amounting  to  felony,  or  in  the  commission  of  a  law- 
ful act  which  might  produce  death,  in  an  unlawful  man- 
ner, or  without  due  caution  and  circumspection.* 

In  dividing  murder  into  degrees  the  legislature  intended 
to  assign  to  the  first  as  deserving  of  greater  punishment, 
all  murders  of  a  cruel  and  aggravated  character,  and  to  the 
second;  all  other  kinds  of  murder  which  are.  murder  at  com- 
mon law,  and  to  establish  a  test  by  which  the  degree  of 
every  case  of  murder  may  be  readily  kscertained.  That 
test  may  be  thus  stated :  Is)  the  killing  wilful  (that  is  to  say 
intentional),  deliberate  and  premeditated?  If  it  is,  the  case 
falls  within  the  first,  and  if  not.  within  the  second  degree. 
There  are  certain  kinds  of  murder  which  carry  with  them 
conclusive  evidence  of  premeditation ;  these  the  legislature 
has  enumerated  in  the  code  definition  already  given  you, 
and  has  taken  upon  itself  the  responsibilty  of  saying  that 
they  shall  be  deemed  and  held  to  be  murder  of  the  first 
degree.     These  cases  are  of  two  classes : 

First.  Where  the  killing  is  perpetrated  by  means  of 
poison,  etc.  Here  the  means  used  is  held  to  be  conclusive 
evidence  of  premeditation. 

Second.  Where  the  killing  is  done  in  the  perpetration^ 
or  attempt  to  perpetrate,  some  one  of  the  felonies  enum- 
erated in  the  statute,  here  the  occasion  is  made  conclusive 
evidence  of  premeditation.  Where  the  case  comes  within 
either  of  these  classes  the  test  question,  "Is  the  killing  wil- 
ful, deliberate  and  premeditated?"  is  answered  by  the  stat- 
ute itself,  and  the  jury  have  no  option  but  to  find  the  pris- 
oner guilty   in   the  first   degree.     Hence,   so   far  as  these 

3  Penal  Code  189.  ^ 

*  Penal  Code  192. 


APPROVED   INSTRUCTIONS.  427 

two  cases  are  concerned,  all  difficulty  as  to  the  question 
of  degree  are  removed  by  the  statute.  .  But  there  is  another 
and  much  larger  class  of  cases  included  in  the  definition 
of  murder  in  the  first  degree,  which  are  of  equal  cruelty 
and  aggravation  with  those  enumerated,  and  which,  owing 
to  the  different  and  countless  forms|  which  murder  assumes, 
it  is  impossible  to  describe  in  the  statute.  In  this  class  the 
legislature  leaves  the  jury  to  determine,  from  all  the  evi- 
dence before  them,  the  degree  of  the  crime,  but  prescribes 
for  the  government  of  their  deliberations  the  same  test 
which  has  been  used  by  itself  in  determining  the.  degree 
of  the  other  two  classes,  to  wit,  the  deliberate  and  precon- 
ceived intent  to  kill.  It  is  only  in  the  latter  class  'of  cases 
that  any  difficulty  is  experienced  in  drawing  the  distinc- 
tion between  murder  of  the  first  and  murder  of  the  second 
degree,  and  this  difficulty  is  more  apparent  than  real.  The 
unlawful  killing  must  be  accompanied  with  a  deliberate 
and  clear  intent  to  take  life  in  order  to  constitute  murder 
of  the  first  degree.  The  intent  to  kill  must  be  the  result 
of  deliberate  premeditation.  It  must  be  formed  upon  a  pre- 
existing reflection  and  not  upon  a  sudden  heat  of  passion 
sufficient   to  preclude   the   idea  of  deliberation. 

There  need  be,  however,  no  appreciable  space  of  time 
between  the  intention  to  kill  and  the  act  of  killing — they 
may  be  as  instantaneous  as  successive  thoughts  of  the 
mind.  It  is  only  necessary  that  the  act  of  killing  be  pre- 
ceded by  a  concurrence  of  will,  deliberation  and  premedi- 
tation on  the  part  of  the  slayer,  and  if  such  is  the  case,  the 
killing  is  murder  in  the  first  degree,  no  matter  how  rapidly 
these  acts  of  the  mind  may  succeed  each  other,  or  how 
quickly  they  may  be  followed  by  the  act  of  killing.^ 

A  man  may  do  a  thing  wilfully,  deliberately  and  inten- 
tionally from  a  moment's  reflection  as  well  as  after 
pondering  over  the  subject  for  a  month  or  year.  He  can 
premeditate,  that  is,  think  before  doing  the  act,  the  moment 
he  conceives  the  purpose,  as  well  as  if  the  act  were  the 
result  of  long  preconcert  or  preparation.  There  is  noth- 
ing in  the  sections  of  the  Penal  Code  which  relate  to  this 

5  People  V.  Nichol,  34  Cal.   213-5. 


428  CRIMINAL  LAW  AND    PROCEDURE. 

subject,  which  indicate  that  the  legislature  meant  to  assign 
any  particular  period  to  this  process  of  deliberation  or  pre- 
meditation, in  order  to  bring  the  act  within  the  first  degree.' 

If  the  unlawful  killing  is  done  without  the  provocation 
and  sudden  passion  which  reduces  the  offense  to  man- 
slaughter, or  is  done  in  the  commission  of  an  unlawful 
act,  the  natural  consequences  of  which  are  dangerous  to 
life,  or  is  committed  in  the  attempt  to  perpetrate  a  felony 
other  than  those  mentioned  in  the  description  of  murder  in 
the  first  degree,  or  the  circumstances  of  the  killing  show 
an  abandoned  heart,  this  is  murder  of  the  second  degree, 
unless  the  evidence  proves  the  evistence  in  the  mind  of  the 
slayer  of  the  specific  intent  to  take  life.  If  such  specific 
intent  exists  at  the  time  of  such  unlawful  killing,  the  offense 
committed  would  of  course  be  murder  of  the  first  degree.' 

Manslaughter,  as  you  have  already  been  instructed,  is 
the  unlawful  killing  of  a  human  being  without  malice. 

The  words  ''malice"  and  "maliciously"  import  a  wish  to 
vex  ,  annoy,  or  injure  another  person,  or  an  intent  to  do  a 
wrongful  act,  established  either  by  proof  or  presumption  of 
law.* 

Manslaughter  is  principally  distinguishable  from  murder 
in  this :  That  though  the  act  which  occasions  the  death  be 
unlawful  or  likely  to  be  attended  with  bodily  mischief,  yet 
the  malice,  either  express  or  implied,  which  is  the  very 
essence  of  murder,  is  presumed  to  be  wanting,  and  the  act 
being  imputed  to  the  infirmity  of  human  nature,  the  cor- 
rection  ordained    for   it    is   proportionately   lenient." 

And  when  the  mortal  blow,  though  unlawful,  is  struck 
in  the  heat  of  passion,  excited  by  a  quarrel,  sudden  and  of 
sufficient  violence  to  amount  to  adequate  provocation,  the 
law,  out  of  forbearance  for  the  weakness  of  human  nature, 
will  disregard  the  actual  intent,  and  will  reduce  the  offense 
to   manslaughter.     In    such   case,    although    the    intent   to 

6  People  V.  Bealoba,  17  Cal.  395. 

7  People  V.  Doyell,  48  Cal.  96;  Ex  parte  Wolf,  57  Cal.  94. 

8  Penal  Code  7,  sub.  4. 

«  Com.  V.  Webster,  5  Ciish.  307. 


APPROVED   INSTRUCTIONS.  429* 

kill  exists,  it  is  not  that  deliberate  and  malicious  intent, 
which  is  an  essential  element  in  the  crime  of  murder." 

But  if  the  intent  exists  and  the  killing  is  unlawful,  it 
will  be  murder,  even  though  done  upon  a  sudden  quarrel 
or  heat  of  passion,  unless  there  was  adequate  provocation. 
In  considering  what  is  regarded  as  such  adequate  provo- 
cation, it  is  a  settled  rule  in  law  that  neither  provocation 
by  words  only,  however  opprobrious,  nor  contemptuous,  or 
insulting  actions,  or  gestures,  without  an  assault  upon  the 
person,  nor  any  trespass  against  lands  or  goods,  are  of 
themselves  sufficient  to  reduce  the  oflfense  of  an  inten- 
tional homicide  with  a  deadly  weapon  from  murder  to  man- 
slaughter.^^ 

If  the  accused  was  engaged  in  the  performance  of  an 
unlawful  act,  and  if  the  deceased  attempted  in  a  lawful 
manner  to  prevent  the  performance  of  such  unlawful  act, 
and  if,  while  so  endeavoring  to  prevent  the  same,  the  defend- 
ant in  anger,  and  solely  for  the  purpose  of  revenge,  or  to- 
enable  him  to  carry  out  his  unlawful  design,  so  interfered 
with  by  said  deceased,  attacked  the  latter  with  a  deadly 
weapon,  intending  to  kill  said  deceased,  and  did,  under 
such  circumstances,  carry  such  intention  into  execution, 
the  fact  that  defendant  was  in  a  passion  would  not  miti- 
gate or  excuse  such  homicide,  but  the  crime  committed 
would  in  such  case  be  murder  in  the  first  degree.  It  is 
not  less  murder  because  the  act  is  done  suddenly  after 
the  intent  to  commit  the  homicide  is  formed.  It  is  suffi- 
cient that  the  malicious  intention  precedes  and  accom- 
panies the  act  of  homicide. 

In  determining  the  intention  of  the  defendant  at  the  time 
of  the  transaction  complained  of,  it  is  important  to  con- 
sider the  means  used  to  accomplish  the  killing.  The  intent 
or  intention  is  manifested  by  the  circumstances  connected 
with  the  offense,  and  the  sound  mind  and  discretion  of  the 

10  People  V.  Freel,  48  Cal.  437. 

11  Com.  V.  Webster,  5  Cush.  305,  307;  Eeople  v.  Turley, 
50  Cal.  471;  People  v.  Murback,  64  Cal.  369;  People  v, 
Tamkin,  62  Cal.   468. 


430  CRIMINAL  LAW  AND  PROGEDUBE. 

accused.  All  persons  are  of  sound  mind  who  are  neither 
idiots,  nor  lunatics,  nor  affected  with  insanity.^^ 

A  person  must  be  presumed  to  intend  to  do  that  which 
he  voluntarily  and  wilfully  does  in  fact  do,  and  must  also 
be  presumed  to  intend  all  the  natural,  probable  and  usual 
consequences  of  his  own  acts.  Therefore,  when  one  per- 
son assails  another  violently  with  a  dangerous  weapon, 
likely  to  kill,  and  which  does  in  fact  destroy  the  life  of  the 
party  assailed,  the  natural  presumption  is  that  such  assail- 
ant intended  death,  or  other  great  bodily  harm,  and  in  the 
absence  of  evidence  to  the  contrary  this  presumption  must 
prevail. 

The  wilful  use  of  a  deadly  weapon  without  excuse  or 
provocation,  in  such  a  manner  as  to  imperil  life,  generally 
indicates  a  felonious  intent.^^ 

Upon  a  trial  for  murder,  the  commission  of  the  homi- 
cide by  the  defendant  being  proved,  the  burden  of  proving 
circumstances  of  mitigation,  or  that  justify  or  excuse  it, 
devolves  upon  him  unless  the  proof  on  the  part  of  the 
prosecution  tends  to  show  that  the  crime  committed  only 
amounts  to  manslaughter,  or  that  the  defendant  was  justi- 
fiable or  excusable.^* 

But  the  defendant  is  only  bound  under  this  rule  to  pro- 
duce such  evidence  as  will  create  in  the  minds  of  the  jury 
a  reasonable  doubt  of  his  guilt  of  the  offense  charged.  It 
can  make  no  difference  whether  such  reasonable  doubt  is 
the  result  of  evidence  on  the  part  of  the  defendant  tend- 
ing to  show  circumstances  of  mitigation,  or  that  justify  or 
excuse  the  killing,  or  from  other  evidence  coming  from 
him  or  the  prosecution.^^ 

THE    RIGHT   OF   SELF-DEFENSE. 

Homicide  is  justifiable  when  committed  by  any  person 
in  either  of  the  following  cases : 

12  Penal  Code  21. 

11  2   Bishop   C.   Law.   sees.   680,   681;    Com.   v.  Webster,   5 

Cush.  305;   People  v.  Munn.  2  W.  C.  R.  748. 
14  Penal  Code  1105. 
i5  People  V.  Bushton,   80   Cal.    160. 


APPROVED   INSTRUCTIONS.  431 

1.  When  resisting  any  attempt  to  murder  any  person,  or 
to  commit  a  felony,  or  to  do  some  great  bodily  injury  upon 
any  person ;  or, 

2.  When  committed  in  defense  of  habitation,  properly  or 
person  against  one  who  manifestly  intends,  or  endeavors, 
by  violence  or  surprise,  to  commit  a  felony;  or  against  one 
who  manifestly  intends  and  endeavors,  in  a  violent,  riotous 
or  timiultuous  manner,  to  enter  the  habitation  of  another 
for  the  purpose  of  offering  violence  to  any  person  thereni; 
or, 

3.  When  committed  in  the  lawful  defense  of  such  rter- 
son,  or  of  a  wife  or  husband,  parent,  child,  master,  mis- 
tress or  servant  of  such  person,  when  there  is  reasonable 
ground  to  apprehend  a  design  to  comfnit  a  felony,  or  to 
do  some  great  bodily  injury,  and  imminent  danger  of  such 
design  being  accomplished ;  but  such  person,  or  the  person 
in  whose  behalf  the  defense  was  made,  if  he  was  the  assail- 
ant or  engaged  in  mortal  combat,  must  really  and  in  good 
faith  have  endeavored  to  decline  any  further  struggle  before 
the  homicide  was  committed ;  or, 

4.  When  necessarily  committed  in  attempting,  by  lawful 
ways  and  means,  to  apprehend  any  person  for  any  felony 
committed,  or  in  lawfully  suppressing  any  riot,  or  in  law- 
fully keeping  and  preserving  the  peace. ^ 

A  bare  fear  of  the  commission  of  any  of  the  offenses 
mentioned  in  subdivisions  two  and  three  of  the  preceding 
section,  to  prevent  which  homicide  may  be  lawfully  com- 
mitted, is  not  sufficient  to  justify  it.  But  the  circumstances 
must  be  sufficient  to  excite  the  fears  of  a  reasonable  per- 
son, and  the  party  killing  must  have  acted  under  the  influ- 
ence of  such  fears  alone. - 

The  court  instructs  the  jury  that  the  acts  which  a  defend- 
ant may  do  and  justify  under  a  plea  of  self-defense  depend 
primarily  upon  his  own  conduct,  and  secondarily  upon  the 
conduct  of  the  deceased.  There  is  no  fixed  rule  applicable 
to  every  case,  though  certain  general  principles,  well  estab- 

1  Penal  Code  197. 

2  Penal  Code  198. 


432  CRIMINAL  LAW  AND  PROCEDURE. 

lished,  stand  forth  as  guides  for  the  action  of  men  and 
measures  for  the  jury's  determination  of  their  deportment. 

You  are  instructed  that  self-defense  is  not  available  as 
a  plea  to  a  defendant  who  has  sought  a  quarrel  with  the 
design  to  force  a  deadly  issue  and  thus,  through  his  fraud, 
contrivance  or  fault,  to  create  a  real  or  apparent  necessity 
for  killing.^ 

You  are  further  instructed  that  self-defense  Is  not  avail- 
able as  a  plea  to  one  who,  by  prearranged  duel,  or  by 
consent  has  entered  into  a  deadly  mutual  combat  in  which 
he  slays  his  adversary.  A  man  may  not  wickedly  or  wil- 
fully invite  or  create  the  appearances  of  necessity  or  the 
actual  necessity  which,  if  present  to  one  without  blame, 
would  justify  the  homicide.* 

The  court  instructs  the  jurv  that  where  one  without  fault 
is  placed  under  circumstances  sufficient  to  excite  the  fears 
of  a  reasonable  person  that  another  designs  to  commit 
a  felony  or  some  great  bodily  injury  upon  him,  and  to 
afford  grounds  for  reasonable  belief  that  there  is  imminent 
danger  of  the  accomplishment  of  this  design,  he  may,  act- 
ing under  these  fears  alone,  slay  his  assailant  and  be  justi- 
fied by  the  appearances.  And,  as  where  the  attack  is  sud- 
den and  the  danger  imminent,  he  may  increase  his  peril 
by  retreat,  so  situated  he  may  stand  his  ground,  that  becom- 
ing his  wall,  and  slay  his  aggressor,  even  if  it  be  proved 
that  he  might  more  easily  have  gained  his  safety  by  flight.* 

So,  too,  under  such  circumstances,  he  may  pursue  and 
slay  his  adversary.  But  the  pursuit  must  not  be  in  revenge, 
nor  after  the  necessity  for  self-defense  has  ceased,  but 
must  he  prosecuted  in  good  faith  to  the  sole  end  of  winning 
his  safety  and  securing  his  life.*^ 

3  People  V.  Hecker,  109  Cal.  462;  People  v.  Robertson,  67 
Cal.  646;    Stewart  v.  State,  1  Ohio  St.  66. 

4  People  V.  Hecker,  109  Cal.  462;  State  v.  Partlow,  90  Mo. 
608;  State  v.  Underwood,  37  Mo.  225;  1  Bishop  Crim. 
Law,  sec.  870;  Gilleland  v.  State,  44  Texas  356;  Clifford 
V.  State,  58  Wis.  478;   Tate  v.  State,  46  Ga.  151. 

5  People  V.  Hecker,  109  Cal.  463;  People  v.  Herbert,  61 
Cal.  544;  People  v.  Gonzales,  71  Cal.  569;  People  v. 
Ye  Park,  62  Cal.  204;  People  v.  Robertson  67  Cal.  646; 
Runyon  v.  State,  57  Ind.  84;  Erwin  v.  State,  29  Ohio 
St.   186. 

6  People  V.  Hecker,  109  Cal.  463. 


APPROVED   INSTRUCTIONS.  4-^3 

The  court  instructs  the  jury  that  the  mere  apprehension 
of  danger  is  insufficient  to  justify  a  homicide.  The  fear 
must  have  been  produced  by  circumstances  such  as  would 
be  sufficient  to  excite  the  fears  of  a  reasonable  person.  The 
law  of  self-defense  is  founded  on  necessity,  and  in  order 
to  justify  the  taking  of  life  upon  this  ground  it  must  not 
only  appear  that  the  defendant  had  reason  to  believe,  and 
did  believe,  that  he  was  in  danger  of  his  life,  or  of  receiv- 
ing great  bodily  harm,  but  it  must  also  appear  to  the 
defendant's  comprehension,  as  a  reasonable  man,  that  to 
avoid  such  danger  it  was  absolutely  necessary  for  him  to 
take  the  life  of  the  deceased.'^ 

ASSAULT. 

ASSAULT   TO    MURDER. 

The  court  instructs  the  jury,'  that  if  you  believe  from  the 
evidence  beyond  a  reasonable  doubt,  that  the  defendant 
committed  an  assault  upon  the  person  of  the  witness 
with  a  deadly  weapon,  as  charged  in  the  informa- 
tion, with  intent  to  kill  and  murder  the  said  ,  then 

you   should   find   the   defendant  guilty   as   charged. 

WHEN    ASSAULT    WITH    A    DEADLY    WEAPON. 

The  court  further  instructs  the  jury  that  if  you  believe 
from  the  evidence  beyond  a  reasonable  doubt,  that  the 
defendant  committed  an  assault  upon  the  person  of  the  wit- 
ness    with  a  deadly  weapon,  as  charged  in  the 

information,  but  not  with  an  intent  to  kill  and  murder  the 

said  ,  then  you  should  find  the  defendant  guilty 

of  assault  with  a  deadly  weapon. 

DEADLY     WEAPON — WITHOUT     SPECIFIC     INTENT. 

The  court  further  instructs  the  jury,  that  if  you  believe 
from  the  evidence,  that  the  defendant  committed  an  assault 

upon  the  person  of  the  witness  with  a  deadly 

weapon,   as   charged   in  the   information,  but   without  any 
specific  intent  to  kill  and  murder  the  said  ,  then 

^  People  v.  Morine,   61   Cal.   367;    People  v,   Scroggins,   37 
Cal.  675. 


CRIMES--28 


-434  CRIMIJTAL  LAW  .«ND  PROCEDURE. 

yoii    should   find   the   defendant   gnilty   of   assault    with   a 
•<leadly  weapon. 

DEADLY    WEAPON WHEN    SIMPLE    ASSAULT. 

The  court  instructs  the  jury,  that  if  you  believe  from  the 
evidence  beyond  a  reasonable  doubt,  that  the  defendant 
committed  an  assault    upon    the    person    of    the    witness 

,  as  charged  in  the  information,  but  do  not  find 

from  the  evidence  that  such  assault  was  made  with  a  deadly 

weapon  or  with  intent  to  kill  and  murder  the  said , 

then  you  should  find  the  defendant  guilty  of  assault. 

ASSAULT SIMPLE. 

The  court  further  instructs  the  jury  that  an  assault  is 
an  unlawful  attempt,  coupled  with  the  present  ability,  to 
commit  a  violent  injury  upon  the  person  of  another. 

DEADLY    WEAPON — WORDS,   ETC.,   WILL   NOT   JUSTIFY. 

The  court  further  instructs  the  jury  that  no  words  of 
insult  or  reproach,  however  grievous  or  opprobrious,  will 
justify  an  assault  with  a  deadly  weapon.^ 

DEADLY  WEAPON,  WHAT  IS. 

A  deadly  weapon  is  any  weapon  or  instrument,  which 
from  the  manner  it  may  appear  in  evidence  to  have  been 
used  was  likely  to  produce  death  or  great  bodily  injury. 

MALICE   AND    MALICIOUSLY. 

The  court  further  instructs  the  jury  that  the  words  "mal- 
ice" and  "maliciously"  import  a  wish  to  vex,  annoy  or  injure 
another  person,  or  an  intent  to  do  a  wrongful  act,  estab- 
lished either  by  proof  or  by  presumption  of  law. 

PERJURY— DE    FACTO     OFFICER     ADMINISTERING    OATH. 

The  court  further  instructs  the  jury  that  while  it  is 
necessary  for  the  prosecution,  in  order  to  secure  a  convic- 

1  People  V.  lams,  57  Cal.   120. 


APPROVED   INSTRUCTIONS.  436 

tion  for  perjury,  to  show  that  the  person  administering  the 
oath  was  authorized  by  law  to  administer  oaths,  still,  if  it 
be  shown  by  the  evidence  beyond  a  reasonable  doubt,  that 
the  oath  was  administered  by  a  person  who  was  then  and 

there  an  acting  in  the  county  of  ,  state 

of  California,  where  the  oath  was  administered,  this  is 
sufficient  evidence  of  his  authority  to  administer  an  oath. 

PERJURY— PROOF   OF   PART   OF   ALLEGED   FALSE   STATE- 
MENTS. 

The  Court  further  instructs  the  jury  that  it  is  not  neces- 
'sary  to  prove  or  establish  all  of  the  matters  alleged  and  set 
up  in  the  information  as  constituting  the  charge  of  perjury 
against  the  defendant  herein.  It  is  sufficient  if  you  believe 
from  the  evidence  beyond  a  reasonable  doubt,  that  the 
prosecution  has  proven  that  any  of  the  matters  charged  in 
the   information   were   so   sworn   to   or  testified   to  by  the 

defendant   on    the    occasion   ,   as    charged    in    the 

information,  and  that  the  sarwe  is  proven  by  the  prose- 
cution, beyond  a  reasonable  doubt,  to  have  been  false  and 
untrue  at  the  time  the  same  was  so  sworn  to,  or  testified 
to,  to  the  then  knowledge  of  the  defendant,  as  charged  in 
the  information,  and  that  the  same  was  material. 

MATERIALITY. 

The  court  further  instructs  the  jury  that  it  is  no  defense 
to  a  prosecution  for  perjury  that  the  accused  did  not 
know  the  materiality  of  the  false  statement  made  by  h^n : 
or  that  it  did  not  in  fact,  affect  the  proceeding  in  or  for 
which  it  was  made.  It  is  sufficient  that  it  was  material,  and 
might  have  been  used  to  affect  such  proceeding.^ 

An  unqualified  statement  of  that  which  one  does  not 
know  to  be  true  is  equivalent  to  a  statement  of  that  which 
one  knows  to  be  false.  But  it  must  be  shovv'U  that  such 
unqualified  statement  was  made  wilfully,  that  is,  with  a 
consciousness  that  it  was  not  known  to  be  true  and  with  the 
intent  that  it  should  be  received  as  a  statement  of  what  was 
in  fact  trvie.^ 

1  Penal  Code  123. 

2  People  V.  Von  Tledeman,  130  Cal.  128. 


436  CRIMINAL  LAW  AND  PROCEDURE. 

RAPE— DEFINITION. 

RAPE. 

The  court  instructs  the  jury  that  rape  is  an  act  of  sexual 
intercourse  accomplished  with  a  female,  not  the  wife  of  the 
perpetrator,  where  she  resists,  but  her  resistance  is  over- 
come by  force  or  violence,  or  where  she  is  prevented  from 
resisting  by  threats  of  immediate  and  great  bodily  harm, 
accompanied  by  apparent  power  of  execution. 

PENETRATION EMISSION. 

The  court  instructs  the  jury  that  proof  of  any  penetra- 
tion, however  slight,  is  sufficient  in  a  case  of  rape,  and  proof 
of  emission  is  not  necessary. 

embraces  "assault  with  intent  to  commit  rape;"  also 
"assault.-" 

Embraced  within  the  offense  charged  in  the  indictment  are 
two  other  offenses,  viz. :  "Assault  with  intent  to  commit 
rape,"  and  "assault,"  sometimes  called  simple  assault.  An 
assault  is  an  unlawful  attempt,  coupled  with  a  present  abil- 
ity, to  commit  a  violent  injury  on  the  person  of  another. 

UNDER    AGE    OF    CONSENT.       FACTS    NECESSARY    TO    A    Ve'rDICT 
OF   GUILTY. 

The  court  instructs  you  that  in  order  to  convict  the  defend- 
ant as  charged  in  the  information,  it  is  necessary  that  the 
evidence  prove  to  your  satisfaction,  beyond  a  reasonable 
doubt : 

1.  That  the  defendant,  on  or  about  the  —  day  of  , 

190 — ,  at  and  within  the  county  of  ,  state  of  Cali- 
fornia, did  wilfully,  unlawfully  and  feloniously  have  sex- 
ual  intercourse   with  ,  the   female  child  mentioned 

in  the  information. 

2.  That  at  the  time  of  the  alleged  commission  of  the  act 

of  sexual  intercourse  the  said  was  under  the  age 

of  sixteen  years. 

3.  That  the  said  was  not  the  wife  of  the  defend- 
ant. 


APPROVED   INSTRUCTIONS.  437 

These  are  the  material  and  essential  elements  embraced 
in  the  offense  charged  in  the  information;  and  if  you  are 
satisfied  from  the  evidence  in  this  case  of  the  truth  of  the 
charge,  and  that  all  and  each  of  said  elements  are  proven 
beyond  a  reasonable 'doubt,  then  it  will  be  your  duty  to 
find  the  defendant  guilty  as  charged. 

FORCE    UNNECESSARY    UNDER    AGE    OF    CONSENT. 

The  court  instructs  you  that  it  is  the  law  of  the  state 
of  California  that  any  female  under  the  age  of  sixteen 
years  shall  be  incapable  of  consenting  to  an  act  of  sexual 
intercourse,  and  that  any  one  committing  an  act  of  sexual 
intercourse  with  a  female  under  such  age,  and  not  his  wife, 
shall  be  guilty  of  the  crime  of  rape,  notwithstanding  he 
obtained  her  consent.  Therefore,  whether  such  child  con- 
sents or  resists,  is  wholly  immaterial. 

CORROBORATION  OF  PROSECUTRIX EXTENT  OF. 

The  court  further  instructs  the  jury  that  it  is  not  essen- 
tial to  a  conviction  in  this  case,  that  the  prosecutrix 

should  be  corroborated  by  the  testimony  of  other  witnesses 
as  to  the  particular  acts  constituting  the  offense.  It  is 
sufficient  if  you  believe  from  her  evidence  and  all  the  other 
testimony  and  circumstances  in  proof  in  the  case,  beyond 
a  reasonable  doubt,  that  the  crime  charged  has  been  com- 
mitted.^ 

EVIDENCE    OF    PROSECUTRIX    SCANNED. 

The  court  further  instructs  the  jury  that  while  it  is  the  law 
that  the  testimony  of  the  prosecutrix  should  be  carefully 
scanned,  still  this  does  not  mean  that  such  evidence  is  never 
sufficient  to  convict.  If  you  believe  the  prosecutrix,  and 
are  satisfied  from  all  of  the  evidence  in  the  case,  beyond  a 
reasonable  doubt,  of  the  defendant's  guilt,  then  you  should 
so  find. 

FORM    OF  VERDICT. 

It  is  competent  for  you  under  this  information  to  find 
either  one  of  four  verdicts :  Rape,  as  charged  in  the  infor- 
mation ;  assault,  with  intent  to  commit,  rape ;  assault,  and 
not  guilty,  as  you  may  be  convinced  from  the  evidence  in 
the  case. 

1  People  V.  Mayes,  66  Cal.  598. 


438  CRIMINAL  LAW  AND  PROCEDURE. 

GAMING— WHAT    IS    PERCENTAGE    GAME. 

The  court  instructs  the  jury  that  a  percentage  game 
within  the  meaning)  of  the  law,  is  a  game  conducted  or  car- 
ried on  by  one  or  more  persons  at  which  others  play  with 
cards,  dice  or  any  device  for  money,  checks,  credit,  or  any 
other  representative  of  value,  and  where  a  portion  or  part 
of  the  amount  bet  or  put  up  as  the  stake  by  those  who  play 
at  the  game  is  taken  or  received  by  the  person  or  persons 
who  conduct  or  carry  on  the  game,  as  his  or  their  portion 
of  the  money  so  lost  or  won. 


CHAPTER  LX:i. 


RKCBIVINO  THE  VKRI3ICT. 


The  jury  having  agreed  upon  their  verdict,  they  must  be 
conducted  into  the  court  by  the  officer  having  them  in 
charge.  Their  names  must  then  be  called,  and  if  all  do 
not  appear,  the  jury  must  be  discharged  without  giving  a 
verdict.^  When  the  jury  appear  they  must  be  asked  by 
the  court,  or  the  clerk,  whether  they  have  agreed  upon  their 
verdict,  and  if  the  foreman  answers  in  the  affirmative,  they 
must,  on  being  required,  declare  the  same.^  When  the 
verdict  is  rendered,  and  before  it  is  recorded,  the  jury 
may  be  polled,  at  the  request  of  either  party,  in  which  case 
they  must  be  severally  asked  whether  it  is  their  verdict, 
and  if  any  of  them  answers  in  the  negative,  the  jury  must 
be  sent  out  for  further  deliberations.^  A  failure  to  poll 
the  jury  does  no  prejudice  to  the  defendant,  if  all  the  jury 
were  present  and  agreed  thereto.*  The  defendant  may 
waive  the  recording  of  the  verdict  in  the  presence  of  the 
}ury.^  When  the  verdict  given  is  such  as  the  court  may 
receive,  the  clerk  must  immediately  record  it  in  full  upon 
the  minutes,  read  it  to  the  jury,  and  inquire  of  them  whether 
it  is  their  verdict.  If  any  juror  disagree,  the  fact  must  be 
entered  upon  the  minutes,  and  the  jury  again  sent  out;  but 
if  no  disagreement  is  expressed,  the  verdict  is  complete,  and 
the  jury  must  be  discharged  from  the  case.^ 

1  Penal  Code  1147. 

2  Penal  Code  1149. 

8  Penal  Code  1163;    People  v.   Nichols,  62  Cal.   518. 

4  People  V.  Rodundo,   44   Cal.    541;    People   v.    Nichols,   62 
Cal.  520. 

5  People  V.  Smalling,    94    Cal.    112. 

6  Penal  Code  1164. 


440  CRIMINAL  LAW  AND  PROCEDURE. 

KINDS  OF  VERDICTS. 

The  jury  may  render  a  general  verdict,  or,  when  they 
are  in  doubt  as  to  the  legal  effect  of  the  facts  proved,  they 
may,  except  upon  su  trial  for  libel,  find  a  special  verdict.^ 

GENERAL  VERDICT. 

A  general  verdict  upon  a  plea  of  not  guilty  is  either 
"guilty"  or  "not  guilty,"  which  imports  a  conviction  or 
acquittal  of  the  offense  charged  in  the  indictment.  Upon  a 
plea  of  a  former  conviction  or  acquittal  of  the  same  offense, 
it  is  either  "for  the  people"  or  "for  the  defendant."  When 
the  defendant  is  acquitted  on  the  ground  that  he  was  insane 
at  the  time  of  the  commission  of  the  act  charged,  the  ver- 
dict: must  be  "not  guilty  by  reason  of  insanity."  When  the 
defendant  is  acquitted  on  the  ground  of  variance  between 
the  indictment  and  the  proof,  the  verdict  must  be  "not 
guilty  by  reason  of  variance  between  indictment  and  proof."* 
A  general  verdict  of  guilty  will  not  sustain  a  conviction 
when  one  or  more  of  the  counts  of  the  indictment  do  not 
state  an  offense,^  and  when  there  are  two  defenses  pleaded 
by  the  defendant  there  must  be  a  verdict  on  both  before 
a  conviction  can  be  sustained.^"  The  jury  need  not  find 
on  the  plea  of  prior  conviction  where  the  defendant  con- 
fesses it,"  but  where  the  plea  is  one  of  not  guilty,  the  jury 
must  find  on  the  prior  conviction. ^^     Where  the  prior  con- 

7  Penal  Code  1150. 

8  Penal  Code  1151. 

9  People  V.  Eppinger,  109  Cal.  294;  People  v.  Garnett,  129 
Cal.  364;  People  v.  Mitchell,  92  Cal.  590;  People  v  Smith, 
103  Cal.  567. 

10  People  V.  Helbing,  59  Cal.  567;  People  v.  Fuqua,  61  Cal. 
377;  People  v.  Tucker,  115  Cal.  338;  People  v.  Lewis,  64 
Cal.  403;  People  v.  Brooks,  65  Cal.  296;  People  v.  Neason, 
67  Cal.  225:  Ex  parte  Young  Ah  Gow,  73  Cal.  443;  People 
V.  Wheatley,  88  Cal.  118;  People  v.  King,  64  Cal.  338; 
Penal  Code  1158. 

11  People  V.  Brooks,  65  Cal.  295;  Ex  parte  Young  Ah  Gow, 
73  Cal.  442;  People  v.  Meyer,  73  Cal.  549;  People  v. 
Wheatley,  88  Cal.  117. 

12  People  V.  Eppinger,  109  Cal.  294;  People  v.  Helbing,  59 
Cal.  567;  People  v.  Fuqua,  61  Cal.  377;  People  v.  Tucker, 
115  Cal.  338;  People  v.  Kinsey,  51  Cal.  278;  Penal  Code 
1158. 


RKCEIVING  THE  VKRDICT.  441 

viction  is  confessed  and  the  verdict  of  the  jury  is  guilty  as 
to  the  crime  charged,  the  defendant  may  be  sentenced  as 
for  a  prior  conviction. ^^ 

SPECIAL   VERDICT. 

A  special  verdict  is  that  byi  which  the  jury  find  the  facts 
only,  leaving  the  judgment  to  the  court.  It  must  present 
the  conclusions  of  fact  as  established  by  the  evidence,  and 
not  the  evidence  to  prove  them,  and  these  conclusions  of 
fact  must  be  so  presented  as  that  nothing  remains  to  the 
court  but  to  draw  conclusions  of  law  upon  them.^*  The 
special  verdict  must  be  reduced  to  writing  by  the  jury, 
or  in  their  presence  entered  upon  the  minutes  of  the  court, 
read  to  the  jury,  and  agreed  to  by  them,  before  they  are 
discharged. ^^  The  special  verdict  need  not  be  in  any  par- 
ticular form,  but  is  sufficient  if  it  presents  intelligibly  the 
facts  found  by  the  jury.^" 

CONTENTS  OF  VERDICT. 

Whenever  a  crime  is  distinguished  into  degrees,  the  jury, 
if  they  convict  the  defendant,  must  find  the  degree  of  the 
crime  of  which  he  is  guilty.^'  Thus  a  general  verdict  with- 
out stating  the  degree  is  a  nullity  in  burglary^*  and  in  mur- 
der,^^  but  a  verdict  of  "guilty  as  charged"  is  sufficient  as 
to  degree,-"  and  is  a  conviction  of  the  crime  charged  in  the 
indictment.-^  It  must,  by  reference  to  the  indictment,  con- 
tain all   the  elements  of  the  crime.--     It  must  specify  the 

13  Ex  parte  Young  Ah  Gow,  73  Cal.  438;  People  v.  Gutier- 
rez, 74  Cal.  83;  People  v.  Fowler,  88  Cal.  140;  Ex  parte 
Williams,  89   Cal.   426. 

n  Penal  Code  1152. 

13  Penal  Code  1153. 

16  Penal  Code  1154. 

17  Penal  Code  1157. 

18  People  V.  Travers,    73    Cal.    580. 

19  People  V.  Campbell,  40  Cal.  129;  People  v.  Lee  Yune 
Chong,  94  Cal.  386. 

2f  People  V.  Whitely,  64  Cal.  211;  People  v.  Price,  67  Cal. 

352  ;|  People  v.  Manners,  70  Cal.  429;  People  v.  Perez,  87 

Cal.  123. 
-!i  People  V.  Perez,  87  Cal.  122;  People  v.  Manners,  70  Cal. 

428;    People  v.  Higuera,  122  Cal.  466. 
•22  People  V.  Cummings,  117  Cal.  497. 


"442  CRIMINAL    LAW    AND    PROCEDURE. 

offense  charged  or  some  one  included  therein ;"  the  con- 
viction of  a  lesser  ofifense  necessarily  included  in  the  greater 
is  proper.-*  Thus,  a  charge  of  an  assault  with  a  deadly 
weapon  will  support  a  verdict  of  assault  to  do  bodily  harm,** 
and  an  information  for  an  assault  with  a  deadly  weapon 
will  sustain  a  conviction  of  a  simple  assault.^"  A  verdict 
of  an  assault  "to  do  bodily  harm  upon  the  person"  is  equiv- 
alent "to  inflict  upon  the  person  of  another  a  bodily  injury."" 
Under  a  charge  of  assault  with  a  deadly  weapon  with  intent 
to  inflict  great  bodily  injury,  a  verdict  of  guilty  of  an  assault 
with  a  deadly  weapon  is  a  conviction  of  a  simple  assault,*' 
but  not  a  verdict  of  guilty  of  an  assault  with  a  deadly 
weapon,  with  intent  to  do  bodily  injury.^"  If  the  jury  i$ 
authorized  to  fix  the  punishment  and  cannot  agree,  they 
should  find  a  general  verdict.^"  Where  the  jury  states 
they  find  a  verdict  of  a  designated  crime,  it  means  they 
find  the  defendant  guilty  thereof,^^  and  a  verdict  agreeing 
that  the  defendant  is  guilty  is  a  finding  of  guilt.-'^  The 
name  used  in  the  indictment  may  be  iised  in  the  verdict 
although  not  the  true  name,'"  and  a  misnomer  is  not  mate- 
rial, it  is  enough  that  the  jury  find  the  defendant  guilty 
without  specifying  his  name  therein.^*  But  where  two 
defendants  are  tried  and  the  verdict  finds  the  defendant 

•-:«  People  V.  Ah  Gow,  53  Cal.  627;  f»eople  v.  West,  73  Cal. 

346. 
24  People  V.  Gordon,  99  Cal.  227;  People  v.  Lowen,  109  Cal. 

381;  People  v.  Muhlner,  115  Cal.  306. 
2c  People  V.  Congleton,  44  Cal.  92;  People  v.  Murat,  45  Gal. 

284;    People  v.    Villarino,   66   Cal.    229;    People   v.    Pape, 

66  Cal.  367;   People  v.  Savercool,  81  Cal.  651. 
20  Ex  parte  Donahue.  65  Cal.  474;  People  v.  Turner,  65  Cal. 

542;    People  v.   Gordon,  99  Cal.   229. 

27  People  V.  Congleton,   44    Cal.   92. 

28  People  V.  Wilson,  9  Cal.  260;  People  v.  Holland,  59  Cal. 
364;  People  v.  Congleton,  44  Cal.  95. 

20  People  V.  English,  30  Cal.  215. 

30  People  V.  Littlefield,  5  Cal.  855;  People  v.  Welch,  49  Cal. 
180. 

31  People  V.  Perdue,  49  Cal.  425;  People  v.  Visher,  96  Cal. 
314. 

32  People  V.  Buckley,  49  Cal.  241. 

33  People  V.  Ah  Kim,  34  Cal.  189. 

84  People  V.  Boggs,  20  Cal.  432;  People  v.  Ah  Kim,  34  Cal. 
190;  People  v.  Ferris,  56  Cal.  444;  People  v.  Smith,  103 
Cal.  568. 


RECEIVIWG  TH^  VERDICT.  44^ 

guilty,  the  verdict  must  be  set  aside,''^  and  a  conviction  df 
one  not  named  in  the  indictment  is  an  acquittal  to  the  one 
indicted,^®  but  the  identity  of  the  accused  is  sufficiently  estab- 
lished notwithstanding  the  omission  of  a  middle  initial.'^ 
A  verdict  of  guilty  imports  a  conviction  of  every  material 
allegation  of  the  indictment,*^  and  is  conclusive  as  to  the 
tendency  and  effect  of  the  evidence  f'-*  but  a  conviction 
of  a  lesser  offense  included  in  the  indictment  must  be 
specified  in  the  verdict/"  A  recommendation  to  mercy  is 
no  part  of  the  verdict.  Tlie  jury  has  nothing  to  do  with 
the  punishment.  Their  province  is  to  determine  the  guilt 
or  innocence  of  the  accused,  and  the  court  may  wholly  dis- 
regard such  a  recommendation.*^! 

AMENDING  THE  VERDICT. 

When  there  is  a  verdict  of  conviction,  in  which  it  appears 
to  the  court  that  the  jury  have  mistaken  the  law,  the  court 
may  explain  the  reason  for  that  opinion,  and  direct  the 
jury  to  reconsider  their  verdict,  and  if,  after  the  reconsider- 
ation, they  return  the  same  verdict,  it  must  be  entered ;  but 
when  thscre  is  a  verdict  of  acquittal,  the  court  cannot  require 
the  jury  to  reconsider  it.  If  the  jury  render  a  verdict 
which  is  neither  general  nor  special,  the  court  may  direct 
them  to  reconsider  it,  and  it  cannot  be  recorded  until  it  is 
rendered  in  some  form  from  which  it  can  be  clearly  under- 
stood that  the  intent  of  the  jury  is  either  to  render  a  gen- 
eral verdict  or  to  find  the  facts  specially,  and  to  leave  the 
judgment  to  the  court.*'^  If  the  jury  persist  in  finding 
an  informal  verdict,  from  which,  however,  it  can  be  clearly 

35  People  V.  Sepulveda,  59  Cal.  343;   Willard  v.  Archer,  63 
Cal.  34. 

36  People  V.  Ah  Ye,  31  Cal.  451;    People  v.   Boggs,  20  Cal, 
435. 

37  People  V.  Hettick,  126  Cal.  425;   People  v.  Rolfe,  61  Cal. 
540. 

38  People  V.  March,   6   Cal.    541;    Ex  parte   Brown,    68   Cal. 
180;   People  v.  West,  73  Cal.  346. 

39  People  V.  Magallones,  15  Cal.  426. 
■*o  People  V.  March,  6  Cal.  541. 

41  People  V.  Lee,   17    Cal.    76;    People   v.   Wilson,    119   Cal. 
384. 

42  Penal  Code  1161. 


444  CRIMINAL  LAW  AND  PROCEDURE. 

understood  that  their  intention  is  to  find  in  favor  of  the 
defendant  upon  the  issue,  it  must  be  entered  in  the  terms 
in  which  it  is  found,  and  the  court  must  give  judgment  of 
acquittal.  But  no  judgment  of  conviction  can  be  given 
unless  the  jury  expressly  find  against  the  defendant  upon 
the  issue,  or  judgment  is  given  against  him  on  a  special 
verdicf  ^  Where  the  jury  returns  an  informal  verdict,  it 
is  the  duty  of  the  court  to  explain  the  defects,  and  direct 
the  jury  to  put  it  in  proper  form.**  The  verdict  may  be 
amended  before  it  is  accepted  or  the  jury  is  discharged," 
.but  not  afterwards.*"  Informalities  may  be  cured  by  refer- 
ring to  instructions  which  the  jury  expressly  mentioned 
therein.*'  An  informal  verdict  is  sufficient  if  it  can  be 
understood  as  being  a  general  verdict  of  guilty  or  not 
^ilty.** 

*3  Penal  Code  1162. 

**  People  V.  Dick,  34  Cal.  663;  People  v.  Ah  Gow,  53  Cal. 
627;  People  v.  Nichols,  62  Cal.  522. 

45  People  V.  Lee  Yune  Chong,  94  Cal.  379;  People  v,  Jen- 
kins, 56  Cal.  4. 

48  People  V.  Bidleman,  104  Cal.   615. 

47  People  V.  Holmes,  118  Cal.  444. 

48  People  V.  McCarty,/  48  Cal.  557;  People  v.  Perdue,  49  Cal. 
427;  People  v.  Douglass,  87  Cal.  283;  Johnson  v.  Visher, 
96  Cal.  314. 


CHAPTER  LXII. 


SENTTENCE  AND  JUDGIVIENT. 


A  conviction  imports  that  the  accused  is  guilty,  either  by 
verdict  of  a  jury,  a  judgment  against  him  upon  a  demurrer, 
upon  a  plea  of  guilty  or  upon  a  judgment  of  a  court,  a  jury 
having  heen  waived  in  criminal  cases  not  amounting  to  a  fel- 
ony.*" In  pronouncing  judgment  the  judge  must  prelim- 
inarily state  to  the  defendant  the  nature  of  the  charge  of 
which  he  is  convicted,^"  of  his  arraignment  and  his  plea, 
of  his  trial  and  the  verdict  of  the  jury  finding  him  guilty,'^ 
and  be  asked  whether  he  has  any  legal  cause  to  show  why 
judgment  should  not  be  pronounced  against  him.^^  These 
requirements  are  mandatory  and  a  substantial  compliance 
therewith  is  essential,  for  they  affect  important  rights  of 
the  defendant,  who,  when  thus  called  upon,  may  show  either 
that  he  is  insane  or  that  there  are  grounds  for  a  new  trial, 
or  for  arrest  of  judgment/^  And  the  court  may  in  miti- 
gation of  punishment,  in  its  discretion,  receive  evidence.^* 

JUDGMENT. 

The  judgment  is  sufficient  although  it  does  not  state  the 
degree  of  the  crime  of  which  the  defendant  was  convicted.'^ 
The  recitals  in  the  judgment  need  not  be  of  a  particular 
offense^  but  only  of  a  general  offense  within  which  the  par- 

4i>  Penal  Code  689  and  1011;  Ex  parte  Brown,  68  Cal.  176. 

50  People  V.  Murback,    64    Cal.    369;    People   v.    Barton,    88 
Cal.  178. 

51  People  V.  Jung  Qung  Sing,  70  Cal.  469. 

52  Penal  Code  1200.  * 

53  People  V.  Walker,  132  Cal.  141, 

54  People  V.  M'Kay,  122  Cal.  628. 
65  People  V.  McNulty,  93  Cal.  427. 


446  CRIMINAL  LAW  AND  PROCEDURE. 

• 

ticular  offense  is  included.^"  And  a  conviction  of  a  lower 
degree  is  proper  where  it  is  included  in  the  offense  charged." 
But  the  judgment  should  show  that  all  acts  required  by 
the  statute  to  be  done  up  to  that  stage  have  been  done."' 
It  is  not  void,  however,  if  it  appears  therefrom  that  the 
court  had  jurisdiction  and  the  defendant  was  convicted." 
Where  a  sentence  is  illegal  in  part,  it  is  not  void  so  as  to 
authorize  a  discharge  on  habeas  corpus  before  the  legal 
part  of  the  judgment  is  satisfied.®"  The  sentence  may  be 
amended  before  final  judgment  is  entered,®^  and  the  court 
may  vacate  a  void  sentence  for  fraud  practiced  on  the 
couTt.®^  But  a  judgment  void  in  part  is  wholly  void,"^ 
except  where  the  valid  part  may,  be  enforced  without  refer- 
ence to  the  void  part.*'*  The  order  fixing  the  date  of  exe- 
cution must  give  the  defendant  a  reasonable  time  to  pre- 
pare a  bill  of  exceptions  thereon."^  The  judgment  need 
not  state  the  venue  if  it  appears  in  the  information,^®  nor 
the  offense  of  which  the  defendant  was  convicted,  if  it 
shows  that  he  was  indicted  and  convicted  of  some  offense 
and  the  court  had  jurisdiction  to  sentence,®^  except  on  a 
direct  attack  on  appeal."®  Fixing  the  date  of  the  execu- 
tion in  the  judgment  is  not  erroneous,  but  it  is  not  the 
best  practice. **''     A  judgment  is  not  void   for  uncertainty 

56  Ex  parte  Murray,  43  Cal.  455. 

B7  People  V.  English,  30  Cal.  215;  Ex  parte  Ah  Cha,  40 
Cal.  427;  Elx  parte  Max,  44  Cal.  581;  Ex  parte  Donahue, 
65  Cal.  475;  People  v.  Pape,  66  Cal.  367;  People  v.  Gor- 
don,  99  Cal.   229. 

•"'8  Ex  narte  Gibson.  31  Cal.  620. 

59  Ex  parte  Gibson,  31  Cal.  620;  People  v.  Raye,  63  Cal. 
492. 

00  Ex  parte  Mitchell,   .  j   Cal.  1. 

01  People  V.  Thompson,  4  Cal.   239. 

02  People  V.  Woods,  84  Cal.  441. 

03  Ex  parte  Kelly,  65  Cal.  154. 

04  Overend  v.  Superior  Court,  131  Cal.  280. 

65  People  V.  Durrant,  119  Cal.  201;   People  v.  Ebanks,  120 

Cal.  629. 
00  People  V.  Johnson,  88  Cal.  171. 
67  Ex  parte  Gibson,  31  Cal.  620;  People  v.  Burgess,  35  Cal. 

118. 
'      68  People  V.  .Johnson,  71  Cal.  384;   People  v.  Eppinger,    109 

Cal.  298;    S.  C,  114  Cal.  352;    People  v.   Kelly,   120  Cal. 

273. 

60  People  V.  Murphy,  45  Cal.  137. 


.    SBNTBNCB  AMD  JCDeMBNTi.  447: 

though  the  defendant  be  imprisoned  for  a  specified  number 
of  years  from  the  date  of  his  incarceration.""  The  court 
in  determining  the  degree  of  crime  need  not  follow  any 
particular  form  in  the  judgment.'^  A  recital  in  the  judg- 
ment that  the  defendant  was  found  guilty  of  gaming  at 
tan  as  charged,  is  equivalent  to  the;  finding  that  the  defend- 
ant was  found  guilty  of  gaming  at  tan  by  carrying  on  and 
conducting  a  game  of  tan.'^  When  the  judgment  states  the 
offense  of  which  the  defendant  was  convicted  and  the  pen- 
alty imposed,  it  is  sufficient."^  It  is  sufficient  in  form  if 
it  recites  the  defendant  be  "punished  by  imprisonment  in 
the  state  prison,"  etc.'*  Where  the  judgment  shows  that 
when  the  defendant  appeared  for  judgment,  he  was  informed 
by  the  court,  or  by  the  clerk  under  its  direction,  of  the 
nature  of  the  charge  against  him,  and  of  his  plea,  and  the 
verdict,  if  any  thereon,  and  asked  whether  he  had  any  legal 
cause  to  show  why  judgment  should  not  be  pronounced 
against  him,  it  is  sufficient. ^^  The  burden  is  on  the  defend- 
ant to  show  any  legal  cause  why  sentence  of  the  court' 
should  not  be  pronounced.'*'  The  judgment  may  fix  the 
date  of  the  imprisonment  to  commence  at  the  time  of  the 
delivery  of  the  defendant  to  the  warden.^^  A  sentence 
below  the  minimum,'^  or  above  the  maximum,  is  void,  and 
the  judgment  will  be  reversed  with  directions  to  proceed 
to  judgment  on  the  verdict.""  The  day  of  the  execution 
should  be  named  in  the  warrant  of  death  and  not  in  the 

70  People  V.  King,   28  Cal.  266;    People  v.   Hughes,  29  Cal. 

262. 
Ti  People  V.  Noll,  20  Cal.  165. 

72  People  V.  Sam  Lung,  70  Cal.  515. 

73  In  matter  of  Ring,  28  Cal.  248;  Ex  parte  Williams,  89 
Cal.  421;  People  v.  Trim,  37  Cal.  275;  People  v.  Douglass, 
87  Cal.  281;  Ex  parte  Turner,  75  Cal.  228;  Ex  parte 
Young  Ah  Gow,  73  Cal.  442;  Ex  parte  Raye,  63  Cal. 
492;  Ex  parte  Dobson,  31  Cal.  499. 

74  People  V.  Wheatley,  88  Cal.  114. 
7r.  People  V.  Perez,  87  Cal.  122. 

76  People  V.  Durrant,   119  Cal.  201. 

77  People  V.  Hughes.  29  Cal.  258;  People  v.  Burgess,  35  Cal. 
118. 

78  Ex  parte  Bernert,  62  Cal.  524.  But  this  was  doubted  by 
the  court  in  Ex  parte  Soto,  88  Cal.  626. 

79  People  V.  Riley,  48  Cal.  549;  Ex  parte  Bernert,  62  Cal. 
531. 


448  CRIMINAL  LAW  AND  PROCEDURE. 

judgment.*"  The  defendant  may  waive  the  time  for  sen- 
tence, and  consent  that  it  be  given  immediately,  as  he  may 
waive  any  statutory  right  intended  for  his  benefit;  and 
where  the  record  does  not  disclose  the  contrary,  it  will  be 
presumed  that  he  did  waive  such  right.*^ 

THE  COMMITMENT. 

A  certified  copy  of  the  judgment  properly  entered  is  a 
sufficient  commitment,*-  and  authority  to  detain  the  pris- 
oner.*^ It  need  not  contain  the  words  "committed  to  the 
sheriff,"**  but  it  should  set  forth  the  crime  alleged  against 
the  prisoner  with  convenient  certainty.  It  should  state  not 
only  the  offense  charged,  but  such  facts  as  are  essential  to 
constitute  the  offense.*^ 

PUNISHMENT. 

A  fine  and  imprisonment  vmtil  paid  may  be  adjudged 
under  a  law  imposing  fine  or  imprisonment  ;^  or  imprison- 
ment for  non-payment  of  fine  at  so  much  per  diem  may  be 
directed  by  the  judgment."  But  both  fine  and  imprisonment 
cannot  be  imposed  under  a  statute  merely  authorizing 
either,^  and  imprisonment  for  non-payment  of  fine  cannot 
be  imposed  when  sentence  provides  for  other  imprisonment 
as   a  punishment.*     Imprisonment   may  be   ordered   to  be 

80  People  V.  Bonilla,  38  Cal.  699;  People  v.  Murphy,  45  Cal. 

141. 
»i  People  V.  Robinson,   46   Cal.   94;    People  v.   Jotinson,   88 

Cal.  174. 

82  In  matter  of  Brown,  32  Cal.  49;  Ex  parte  Dobson,  31  Cal. 
498;  Ex  parte  Gibson,  31  Cal.  622. 

83  In  matter  of  Ring,  28  Cal.  248;  Ex  parte  Ahem,  103  Cal. 
414. 

84  Ex  parte  Moan,  65  Cal.  216. 

85  Ex  parte  Branigan,  19  Cal.  133. 

1  Ex  parte  Chin  Yan,  60  Cal.  78;  Ex  parte  Lawrence,  60 
Cal.  84;  People  v.  Baldwin,  60  Cal.  435;  People  v.  Miller, 
82  Cal.  455. 

2  Ex  parte  Ellis,  54  Cal.  204;  Ex  parte  Chin  Yan.  60  Cal. 
80;  Ex  parte  Harrison,  63  Cal.  300;  Ex  parte  Henshaw, 
73  Cal.  496;  Ex  parte  Miller,  82  Cal.  455;  People  v.  Bald- 
win, 60  Cal.  435. 

3  Ex  parte  Gilmore,  71  Cal.  624. 

*  People  V.  Hamberg,  84  Cal.  468;  People  v.  Brown,  113 
Cal.  36. 


SENTENCE  AND  JUDGMENT.  449 

in  a  city  jail.^  Imprisonment  for  non-payment  may  be 
added  when  judgment  is  for  fine  only,  but  it  must  be 
limited  to  the  maximum  of  the  period  for  which  imprison- 
ment might  be  imposed,  directly  as  a  means  of  punishment.' 
And  it  may  be  made  at  the  rate  of  one  day  for  each  two 
dollars  fine/  although  the  authorized  mode  is  at  the  rate 
of  a  day  for  each  dollar.*  Where  the  fine  and  the  imprison- 
ment to  enforce  payment  are  separately  .entered  in  the  judg- 
ment, the  sentence  of  imprisonment  as  a  punishment  is 
valid,  and  may  be  enforced."  The  defendant  may  avoid 
imprisonment  for  non-payment  of  fine  by  payment  of  the 
fine  or  of  the  remainder  thereof,  after  deducting  the  speci- 
fied per  diem  for  the  number  of  days  served.^"  Where  the 
crime  is  punishable  by  fine,  the  power  to  impose  imprison- 
ment is  dependent  upon  its  non-payment.^^  Imprisonment 
at  hard  labor,  when  unauthorized,  does  not  render  the 
remainder  of  the  sentence  void.^^  Imprisonment  for  unpaid 
fine  may  be  ordered  in  all  cases  where  the  statutes  provide 
that  the  judgment  may  also  direct  that  the  convicted  person 
be  imorisoned  vmtil  the  fine  be  satisfied. ^^  In  punish- 
ment for  a  misdemeanor  a  fine  cannot  be  enforced  by  labor 
as  an  alternative.^*  Imprisonment  to  enforce  fine  is  void 
as  to  any  excess  over  the  maximum  imprisonment  allowed 
by  the  statute  for  the  offense,^"  but  is  valid  where  the  total 
imprisonment  does  not  exceed  the  statutory  limitation.^* 
It  cannot  be  imposed  where  the  sentence  clearly  provides 

5  Ex  parte  Halsted,  89  Cal.  471;  In  re  Ambrosewf,  109  Csfl. 
266. 

6  Ex  parte  Casey,  85  Cal.  36;  Ex  parte  Miller,  82  Cal.  454. 
T  Ex  parte  Noble,  96  Cal.  362. 

8  Ex  parte  Soto,  88  Cal.  624;  In  re  Mulholland,  97  Cal.  529. 

9  Ex  parte    Mitchell,  70  Cal.  1. 

10  Ex  parte  Casey,  85  Cal.  36. 

11  Ex  parte  Baldwin,  60  Cal.  432;   Ex  parte  Miller,  82  Cal. 
455;   People  v.  Soto,  88  Cal.  631. 

12  In  re  Fil  Ki,  80  Cal.  201;  Ex  parte  Halsted,  89  Cal.  473. 

13  People  V.  Righetti,  66  Cal.  184;  see  also  Ex  parte  Rosen- 
heim, 83  Cal.  381;  Ex  parte  Neustadt,  82  Cal.  274. 

14  Ex  parte  Kelly,  65  Cal.  154;  Ex  parte  Arras,  78  Cal.  306; 
In  re  Fil  Ki,  80  Cal.  203. 

15  Ex  parte  Erdmann,  88  Cal.  579;   Ex  parte  Soto,  88  Cal. 
628. 

10  Ex  parte  Sing  Ah  Tong,  84  Cal.  165. 


CRIMES--29 


450  CRIMINAL  LAW  AND  PBOOEDURE. 

for  other  imprisonment,^"  or  in  addition  to  other  imprison- 
ment,'^ but  it  may  be  imposed  to  enforce  the  payment  of*a 
fine  at  a  fixed  rate  per  day.^®  An  unauthorized  release, 
pending  an  appeal  from  such  judgment,  is  a  technical 
escape,  and  the  time  of  absence  cannot  be  computed  as  a 
part  of  the  term.  The  expiration  of  the  time,  without  any 
imprisonment,  is  in  no  sense  an  execution  of  the  sentence.^" 
The  judgment,  in  such  cases,  may  direct  imprisonment  at 
a  certain  rate  per  day  which  may  be  ended  at  any  time,  by 
the  payment  of  the  remainder  of  the  fine.^^ 

Where  a  penalty  is  not  fixed  and  prescribed  by  the  code 
defining  the  offense,  every  oflfense  declared  to  be  a  misde- 
meanor is  punished  by  imprisonment  in  the  county  jail  not 
exceeding  six  months  or  by  fine  not  exceeding  five  hundred 
dollars,  or  by  both.-^  A  conviction  of  a  misdemeanor  can- 
not be  punished  bv  imprisonment  in  the  state  prison. ^^ 
Imprisonment  in  the  state  prison  can  be  directed  only  in 
felony  cases.-*  The  legislature,  however,  has  power  to  pro- 
vide diflferent  places  of  punishment  for  the  same  ofTense.^'"' 
A  commitment  to  Whittier  state  school  for  burglary  with- 
out a  jury  trial  or  notice  to  parents  is  void.^°  On  a  sen- 
tence for  misdemeanor,  the  court  may  direct  the  payment 
of  the  fine  "  forthwith. "^^  Imprisonment  in  a  house  of  cor- 
rection may  be  ordered  on  a  conviction  in  the  Superior 
Court  in  cases  which  might  be  either  a  misdemeanor  or  a 

17  Ex  parte  Rosenheim,  83  Cal.  388;  Ex  parte  Wadleigh,  82 
Cal.  520;  Ex  parte  Casey,  85  Cal.  37;  People  v.  Neustadt, 
82  Cal.  273. 

18  People  V.  Brown,  113  Cal.  36. 

19  People  V.  Markham,  7  Cal.  209. 

20  Ex  parte  Vance,  90  Cal.  208. 

21  Ex  parte  Kelly,  28  Cal.  415;  Ex  parte  Casey,  85  Cal.  38; 
Ex  parte  Ellis,  54  Cal.  206;  Ex  parte  Baldwin,  60  Cal. 
435;  Ex  parte  Harrison,  63  Cal.  300. 

22  People  V.  Tom  Nop,  124  Cal.  150. 

23  Ex  parte  Ah  Cha,  40  Cal.  426. 

24  Ex  parte  Arras,  78  Cal.  304;  Ex  parte  Wadleigh,  82  Cal. 
520;   Ex  parte  Casey,  85  Cal.  37. 

25  In  re  Ambrosewf,  109  Cal.  264. 
2"  Ex  parte  Becknell,  119  Cal.  496. 
2T  Ex  parte  Noble,  96  Cal.  362. 


8ENTENCK  AND  JUDGMENT.  451 

felony.-^  Imprisonment  in  the  state  prison  pending  execu- 
tion of  the  sentence,  is  a  part  of  the  punishment  for  mur- 
der.^'^  The  court  has  no  power  to  deport  a  prisoner  as  a 
part  of  the  punishment,  and  such  an  order  merely  operates 
to  suspend  judgment."'"  If  an  execution  of  the  judgment 
of  death  be  not  had  on  the  day  appointed,  the  court  may 
appoint  another  day,'^^  and  the  warden  of  the  penitentiary 
has  authority  to  execute  the  sentence.^^  Imprisonment  for 
a  fixed  period  is  a  proper  punishment  for  an  assault  to 
rape.^^  A  conviction  of  petit  larceny  as  a  second  offense,^* 
or  of  an  attempt  to  commit  larceny  after  a  prior  convic- 
tion thereof,  is  a  felony,  and  may  be  punished  by  imprison- 
ment in  the  state  prison.""^ 

CUMULATIVE  SENTENCES. 

-Cumulative  sentences  are  valid,'^"*  and  sentences  may  be 
fixed  to  begin  at  a  time  to  be  determined  by  examination  of 
the  court's  records. ^"^  Consecutive  sentences  may  be  imposed 
and  the  second  need  not  be  expressly  designated  as  com- 
mencing at  the  termination  of  the  first. ^"^  A  trial  and  con- 
viction of  murder  may  be  had  when  the  defendant  is 
imprisoned  for  life  for  another  conviction.^^  Where  there 
are  two  convictions,  both  appealed  from  and  both  affirmed, 
the  prisoner  will  not  be  entitled  to  his  discharge  from  the 
second  until  the  full  time  fixed  therefor  has  expired  after 
the  affirmance  of  the  first.'® 

CREDITS   FOR  GOOD  BEHAVIOR. 

Allowance  for  credits  does  not  require  the  action  of  the 

28  Ex  parte  Flood,   64  Cal.   251;    Ex  parte   Moon  Fook,  72 
Cal.  10;   In  re  Ambrosewf,  109  Cal.  267. 

29  People  V.  Durrant,    119    Cal.    202;    Ex   parte    Fredericks, 
104  Cal.  400. 

30  People  V.  Patrich,  118  Cal.  332. 

31  People  V.  Bonillo,    38    Cal.    699. 

32  People  V.  Ebanks,  120  Cal.  626. 

33  People  V.  Gardner,  98  Cal.  127. 

34  People  V.  Gutierrez,    74    Cal.    83. 

35  People  V.  Brooks,  65  Cal.  295. 
33aEx  parte  Morton,  132  Cal.  346. 

36  People  V.  Forbes,  22  Cal.  136;  Ex  parte  Raye,  63  Cal.  492. 

37  Ex    parte    Kirby,    76    Cal.    514. 

38  People  V.  Majors,  65  Cal.   138. 

39  Ex  parte  Green,  86  Cal.  426. 


462  CRIMINAL  LAW  AND  PROCEDURE. 

governor  of  the  state.  The  warden  may  discharge  the  pris- 
oner, but  the  prison  directors  may  forfeit  credits  for  mis- 
conduct.'**' A  deduction  for  good  behavior  must  be  taken 
from  the  entire  period  where  the  sentence  is  for  two  terms, 
and  not  from  the  end  of  the  first  term,  as  the  entire  period 
is  but  one  term.*^ 

PUNISHMENT    FOR    PREVIOUS    CONVICTION. 

Every  person  who,  having  been  convicted  of  any  oflfense 
punishable  by  imprisonment  in  the  state  prison,  commits 
any  crime  after  such  conviction,  if  the  offense 
of  which  he  is  subsequently  convicted  is  such  that,  upon 
the  first  conviction,  he  would  be  imprisoned  in  the  state 
prison  for  any  term  exceeding  five  years,  is  punishable 
by  imprisonment  in  the  state  prison  not  less  than  ten  years. 
If  his  first  conviction  was  punishable  by  imprisonment  for 
five  years  or  less  then  he  is  punishable  by  imprisonment  for 
not  exceeding  ten  years.  If  the  subsequent  conviction  is 
for  petit  larceny,  or  an  attempt  to  commit  any  oflfense 
which,  if  committed,  would  be  punishable  by  imprisonment 
in  the  state  prison  not  exceeding  five  years,  then  the  per- 
son convicted  of  such  subsequent  oflfense  is  punishable  by 
imprisonment  in  the  state  prison  not  exceeding  five  years. 
If  the  conviction  was  for  petit  larceny,-  or  an  attempt  to 
commit  an  oflfense,  which,  if  perpetrated,  would  be  punish- 
able by  imprisonment  in  the  state  prison,  then  upon  con- 
viction of  a  subsequent  oflfense,  if  it  be  an  oflfense  such  that, 
upon  first  conviction,  would  be  punishable  by  imprison- 
ment in  the  state  prison  for  life,  at  th#  discretion  of  the 
court,  such  person  is  punishable  by  imprisonment  in  such 
prison  during  life.  If  for  a  term  less  than  for  life,  it 
would  be  punishable  by  imprisonment  for  the  longest  term 
prescribed  upon  the  conviction  for  the  first  oflfense.  If 
the  subsequent  conviction  is  for  petit  larceny  or  an  attempt 

40  Ex  parte  Wadleigh,  82  Cal.  518. 

41  Ex  parte  Dalton,  49  Cal.  463. 


SENTENCE  AND  JUDGMENT.  463 

to  commit  an  offensa  which,  if  perpetrated,  would  be  pun- 
ishable by  imprisonment  in  the  state  prison,  then  such 
person  is  punishable  by  imprisonment  in  such  prison  for 
not  exceeding  five  years.*^ 

Ja  Ex  parte  Young  Ah  Gow,  73  Cal.  438;  EJx  parte  Williams, 
89  Cal.  421;  People  v.  Johnson,  88  Cal.  171;  People  V. 
Douglass,  87  Cal,  281. 


CHAPTER  LXIII. 


NKW  XRIAI^. 


A  new  trial  is  a  re-examination  of  the  issue  in  the  same 
court,  before  another  jury,  after  a  verdict  has  been  given.^ 
The  application  for  a  new  trial  must  be  made  before 
judgment.^  It  must  be  based  upon  objections  taken  after 
the  plea  and  including  the  verdict;  objections  before  the 
plea  as  to  the  indictment,  are  not  reviewable.^  The  time 
to  ask  for  a  new  trial  begins  to  run  from  the  rendition 
of  the  verdict.*  Notice  of  the  motion  is  not  a  part  of  the 
judgment  roll,  and  to  become  a  part  of  the  record  must  be 
incorporated  in  a  bill  of  exceptions.' 

GROUNDS    OF    THE    MOTION. 

A  motion  is  an  application  for  an  order  made  viva  voce 
in  open  court ;  a  written  application,  not  called  to  the  atten- 
tion of  the  court,  is  not  a  motion.®  A  new  trial  can  be 
granted  only  upon  the  following  grounds :  ( i )  The 
absence  at  the  trial  in  felony  cases  of  the  accused;  (2) 
when  the  jury  has  received  evidence  out  of  court;  (3)  sep- 
aration of  the  jury  after  retiring  to  deliberate,  or  other 
misconduct  by  which  a  fair  and  due  consideration  of  the 
case  has  been  prevented;  (4)  where  the  decision  is  by 
lot;  (5)  where  the  court  misdirected  the  jury  as  to  law, 
or  erred  in  its  decision  of  a  question  of  law ;  (6) 
where    the    verdict    is    contrary  to  law  or    evidence;    (7) 

1  Penal  Code  1179. 

2  Penal  Code  1182. 

3  People  V.  Turner,  39  Cal.  370. 

4  People  V.  Hill,  16  Cal.  113. 

5  People  V.  Crowley,  100  Cal.  478. 

6  People  V.  Ah  Sam,  41  Cal.  645;  Spencer  v.  Branham,  109 
Cal.  340. 


NEW  TRIAL.  455 

newly  discovered  evidence.^  If  asked  for  upon  the 
ground  of  surprise  at  the  testimony  of  a  witness,  the 
affidavits  must  show  that  the  testimony  given  was  not 
true,^  and,  if  upon  the  ground  of  absence  of  witnesses, 
the  appHcation  should  be  supported  by  affidavits  of  such 
witnesses  that  they  can  testify  to  facts  sought  to  be 
proved,  or  some  good  excuse  must  be  given  for  not  pre- 
senting such  affidavits."  The  defendant  should  be  per- 
mitted to  show  improper  influence  of  the  jury  on  his 
motion,"*  but  where  the  evidence  of  the  misconduct  is  con- 
flicting, a  new  trial  will  not  be  granted. ^^  Where  the 
application  is  made  upon  the  ground  of  newly  discovered 
evidence,  it  must  be  made  to  appear :  ( i )  That  the  testi- 
mony is  not  merely  material,  but  that  it  is  newly  discov- 
ered;  (2)  that  it  is  not  merely  cumulative;  (3)  that  it 
will  render  a  different  result  probable ;  (4)  that  with 
reasonable  diligence,  it  could  not  have  been  discovered 
prior  to  the  trial;  (5)  that  these  facts  be  shown  by  the 
best  evidence. ^^  Newly  discovered  evidence  which  is 
merely  cumulative,^^  or  impeaching,^^  or  contradictory  m 

7  Penal  Code  1181;  People  v.  Fair,  43  Cal.  137;  People  v. 
Voll,  43  Cal.  167;  People  v.  McCarty,  48  Cal.  559;  People 
V.  Shainwold,  51  Cal.  470;  People  v.  O'Brien,  88  Cal. 
488;    People  v.  Gardener,  98  Cal.  128. 

8  People  V.  Jocelyn,  29  Cal.  562. 

0  People  V.     De  Lacey,  28  Cal.  590;    People  v.  Jocelyn,  29 

Cal.  563;   Arnold  v.  Skaggs,  35  Cal.  688. 
oa  People  V.  Murray,  85  Cal.  350. 

10  People  V.  Anthony,  56  Cal.  399;  People  v.  Thornton,  74 
Cal.  488. 

11  People  V.  Urquidas,  96  Cal.  239;  People  v.  Bene,  130  Cal. 
167;  People  v.  Howard,  74  Cal.  547;  People  v.  Soap,  127 
Cal.  408;  People  v.  Miller,  33  Cal.  98:  People. v.  Ah  Ton, 
53   Cal.   741;    People  v.   Chin   Hing  Chang,  74  Cal.   389; 

People  V.   Brittan,  118  Cal.   409;    People  v.  Luchetti,   119 
Cal.  501;    People  v.   Leong  Yune  Gun.  77  Cal.  636. 

12  People  V.  Hong  Quin  Moon,  92  Cal.  41;  People  v. 
Anthony,  56  Cal.  397;  People  v.  Goldenson,  76  Cal.  352; 
People  V.  Loui  Tung,  90  Cal.  379;  People  v.  M'Donell,  47 
Cal.  134;  People  v.  O'Brien,  78  Cal.  41;  People  v.  Faun 
Ah  Sing,  70  Cal.  8;  People  v.  Wong  Ah  Foo,  69  Cal.  180; 
People  V.  Brittan,  118  Cal.  409;   Peonle  v.  Demasters,  109 

Cal.  607;   People  v.  Kloss,  115  Cal.  567;    People  v.  Mesa, 
93  Cal.  581. 

13  People  V.  Goldenson,  76  Cal.  328;  People  v.  Loui  Tung, 
90  Cal.  377;   People  v.  Ah  Noon,  116  Cal.  656. 


456  CRIMINAL  LAW  AND  PROCEDURE. 

character,  is  not  sufficient  ground  for  a  new  trial. ^*  So 
strict  is  the  rule  against  granting  the  motion  on  a  showing 
merely  contradictory  of  the  evidence  at  the  trial,  that  it 
will  be  denied  even  where  the  affidavits  show  the  wit- 
nesses committed  perjury  upon  the  trial,  or  where  a  wit- 
ness confesses  perjury.^'*  But  if  the  new  evidence  will 
show  innocent  possession  of  the  property  alleged  to  have 
been  stolen,  it  is  sufficient  to  grant  a  new  trial. ^"  The 
motion  should  be  denied  when  the  verdict  will  not  be 
changed  by  the  new  evidence,"  or  where  it  might  have 
been  elicited  on  cross-examination.^*  The  application  is 
addressed  to  the  sound  discretion  of  the  trial  court,^"  and 
it  is  not  an  abuse  of  discretion  to  deny  a  motion  where  the 
affidavits  are  fully  contradicted  by  counter-affidavits.-"  A 
showing  must  be  made  of  the  nature  and  character  of  the 
newly  discovered  evidence,'*^  as  the  motion  is  viewed  with 
suspicion  and  disfavor  when  made  upon  this  ground." 
Where  the  affidavits  are  conflicting,  the  ruling  will  not  be 
disturbed  on  appeal,^^  the  presumption  being  in  favor  of 
the  record.-*  The  application  must  show  why  the  evidence 
was  not  produced  at  the  trial. ^°     When  it  is  not  on  a  point 

1*  People  V.  Anthony,  56  Cal.  399;  People  v.  Loui  Tung,  90 
Cal.  379;  People  v.  McCauley,  45  Cal.  146;  People  v.  Free- 
man, 92  Cal.  370. 

!■■  People  V.  Tallmadge,  114  Cal.  427. 

16  People  V.  Stanford,  64  Cal.  27. 

IT  People  V.  Demasters,  109  Cal.  607. 

18  People  V.  Phelan,  123  Cal.  551. 

19  People  V.  Griner,  124  Cal.  19;  People  v.  Demasters,  109 
Cal.  607;  People  v.  Mitchell,  129  Cal.  584;  People  v.  Chew 
Wing  Gow,  120  Cal.  298;  People  v.  Hotz,  73  Cal.  241; 
People  V.  Lum  Yit,  83  Cal.  134;  People  v.  Knutte,  111 
Cal.  456;  People  v.  Flood,  102  Cal.  333. 

20  People  V.  Fice,  97  Cal.  459. 

21  People  V.  Eppinger,  114  Cal.  350. 

22  People  V.  Freeman,  92  Cal.  359;  People  v.  Tallmadge, 
114  Cal.  430;  People  v.  Sutton,  73  Cal.  243;  People  v. 
Howard,  74  Cal.  549;  People  v.  Rushing,  130  Cal.  455; 
People  V.  Leong  Yune  Gun,  77  Cal.  637;  People  v.  Ur- 
quidas,  96  Cal.  241. 

23  People  V.  Woon  Tuck  Wo,  120  Cal.  294;  People  v.  Clarke, 
130  Cal.  642;  People  v.  Demasters,  109  Cal.  607;  People 
V.  Merkle,  89  Cal.  82. 

2*  People  V.  Warren,  130  Cal.  683;  People  v.  Freeman,  92 
Cal.  359;   People  v.  Rushing,  130  Cal.  449. 

25  People  V.  Nelson,  85  Cal.  421;  People  v.  McCurdy,  68  Cal. 
576. 


NEW  TRIAL.  457 

raised  at  the  trial, ^^  or  the  counter-affidavits  show  that 
unless  the  evideiice  is  false,  the  defendant  must  have 
known  of  it  before  the  trial,  the  showing  is  not  sufficient.''' 
A  motion  on  the  ground  of  newly  discovered  evidence  will 
not  be  considered  on  appeal  without  the  affidavits  used 
in  support  thereof  are  incorporated  in  a  bill  of  excep- 
tions.-* It  cannot  be  amended  after  judgment,^*  and  the 
court  may  refuse  to  set  aside  the  order  denying  the  motion 
to  admit  new  affidavits.^" 

WHEN    GRANTED. 

Where  the  trial  court  thinks  the  evidence  insufficient 
to  convict,  it  should  grant  the  motion  for  a  new  trial,  and 
not  leave  it  to  the  appellate  court,  which  has  jurisdiction 
only  on  questions  of  law.^^  It  will  be  granted  only  on  the 
application  of  the  defendant,^-  and  the  order  granting  will 
be  reversed  only  for  an  abuse  of  discretion. ^^  It  will 
not  be  entertained  for  a  second  time  upon  an  entry  of 
judgment  nunc  pro  tunc  after  the  appeal.'^*  The  order 
denying  a  new  trial  cannot  be  set  aside  pending  an  appeal.^® 
The  record  must  show  the  grounds  of  the  motion,  or  the 
order  refusing  it  will  not  be  reversed.^"  Errors  on  plea 
of  "once  in  jeopardy"  may  be  reviewed  as  well  as  those 
on  a  plea  of  "not  guilty,"^'  and  it  will  bring  up  any  ruling 
denying  the   defendant  a   statutory  privilege.^*     Affidavits 

26  People  V.  O'Neal,  67  Cal.  378;  People  v.  Freeman,  92  Gal. 

370. 
2T  People  V.  Cesena,  90  Cal.  381. 
'■i»  People  V.  Fredericks,  106  Cal.  554. 
■■ii>  People  V.  Wessel,  98  Cal.  358. 
••*"  People  V.  Flannelly,  128  Cal.  83. 

31  People  V.  Lum  Yit,   83   Cal.    130;    People   v.   Knutte,   111 
Cal.  453;   People  v.  Baker,  39  Cal.  686;   People  v.  Flood, 

102  Cal.  330;    People  v.  Ashnauer,  47  Cal.  98;    People  v. 

Chew  Wing  Gow,  120  Cal.  298. 
"2  People  V.  Bangeneaur,  40  Cal.  613. 

33  People  V.  Knutte,  111  Cal.  453. 

34  People  V.  Sing  Lum,  61  Cal.  538. 
3r,  People  V.  Mayne,  118  Cal.  516. 

:-■<'  People  V.  McCoy,   71   Cal.   395. 

••■■  People  V.  Smith,  121  Cal.  355;    People  v.  Majors,  65  Cal. 

138. 
-i«  People  V.  Ah  Fong,   12   Cal.   345. 


458  CRIMINAL  LAW  AND  PROCEDURE. 

used  on  motion  must  be  embodied  in  a  bill  of  exceptions, 
as  they  are  not  a  part  of  the  record  on  appeal.^"  Onr 
reversal,  a  new  trial  should  be.  ordered,  although  not  asked 
for,*"  The  motion  for  a  new  trial  on  the  ground  of  the 
insufficiency  of  the  evidence  may  be  heard  without  a 
statement,*^  or  bill  of  exceptions.'*^  The  failure  to  record 
the  verdict  before  the  jury  is  discharged  is  not  a  sufficient 
irregularity  for  which  to  grant  a  new  trial.*^  The  motion 
may  be  heard  by  a  successor  of  the  judge  who  tried  the 
case.**  The  granting  of  a  new  trial  places  the  parties  in 
the  same  position  as  if  no  trial  had  been  had.  All  the 
testimony  must  be  produced  anew,  and  the  former  verdict 
cannot  be  used  or  referred  to  either  in  evidence  or  in 
argument,  or  be  pleaded  in  bar  of  any  conviction  which 
might  have  been   under  the   indictment.^^ 

MOTION    IN    ARREST    OF    JUDGMENT. 

The  motion  can  be  founded  only  on  defects  appearing 
on  the  face  of  the  indictment  or  information.*^  The 
defects  must  be  substantial  ones.*^  The  specific  grounds 
on  which  the  motion  is  made  must  be  pointed  out.**  The 
effect  of  the  granting  of  a  motion  must  be  to  discharge 
the  defendant  unless  he  is  detained  on  other  process,*"  but 

39  People  V.  Price,  17  Cal.  311;  People  v.  Mahoney,  77  Cal. 
532;  People  v.  Louie  Foo,  112  Cal.  21;  People  v.  Padillia, 
42  Cal.  535. 

*o  People  V.  Lee  Yune  Chong,  94  Cal.  380;  People  v.  Olwell, 
28  Cal.  456. 

41  People  V.  Fisher,  51  Cal.  319;  Lin  Tai  v.  Hewill,  56  Cal. 
118. 

42  People  V.  Keyser,  53  Cal.  183. 

43  People  V.  Gilbert,  57  Cal.  96;  People  v.  Beck,  58  CaL 
212;  People  v.  Smith,  59  Cal.  603;  People  v.  Smalling,  94 
Cal.  119. 

44  People  V.  Hodgdon,  55  Cal.  72;  People  v.  Hobson,  17 
Cal.  424;   People  v.  Henderson,  28  Cal.  475. 

45  Penal  Code  1180. 

4<i  Penal  Code  1185;  People  v.  Chaves,  122  Cal.  134;  People 
V.  McConnell,  82  Cal.  620;  People  v.  O'Leary,  77  CaL 
30;  People  v.  McCarty,  48  Cal.  557;  People  v.  Gardner, 
98  Cal.  127;  People  v.  Cole,  127  Cal.  545;  People  v.  John- 
son, 71  Cal.  384. 

47  People  V.  Ross,  103  Cal.  425. 

4s  People  V.  Dick,  37  Cal.  277;  People  v.  Sansome,  98  CaL 
239. 

40  Ex  parte  Hartman,  44  Cal.  32. 


NEW  TRIAL.  459 

it  operates  as  an  acquittal  only  when  no  evidence  has 
been  shown  sufficient  to  charge  the  defendant  with  any 
offense.  It  is  not  necessary  that  the  evidence  should  be 
sufficient  to  convict  in  order  to  sustain  a  denial. "^^  Neither 
the  order  denying  the  motion,^^  nor  the  order  granting  it, 
is  appealable. ^- 

60  People  V.  Eppinger,  109  Cal.  294. 

51  People  V.  Dolan,  96  Cal.  315;  People  v.  Markham,  64 
Cal.  157;  People  v.  Majors,  65  Cal.  100;  People  v.  Henry, 
77  Cal.  446;  People  v.  Cline,  83  Cal.  374;  People  v.  San- 
some,    98    Cal.    241. 

52  People  V.  Ah  Kim,  44  Cal.  384. 


CHAPTER  LXIV. 


AF»F»BAIv. 


JURISDICTION. 

The  jurisdiction  of  the  Supreme  Court  upon  appeal 
■extends  only  to  questions  of  law,  and  only  in  such  cases 
where  the  defendant  has  been  convicted  of  a  felony.^  But 
where  the  offense  charged  may  be  either  a  felony  or  a  mis- 
demeanor according  to  the  punishment  inflicted,  the 
Supreme  Court  has  jurisdiction  of  appeals  from  orders 
before  judgment.^  It  also  has  jurisdiction  of  appeals  in 
misdemeanor  cases  prosecuted  by  indictment  or  informa- 
tion.' Its  jurisdiction  attaches  only  while  the  defendant 
is  in  actual  or  constructive  custody.  If  the  defendant 
escapes  after  conviction,  he  cannot  appeal  to  the  Supreme 
Court  through  his  attorney.*  Such  an  appeal  will  be  dis- 
missed unless  the  defendant  within  a  specified  time  returns 
to  custody.^  An  appeal  without  the  consent  of  the  defend- 
ant and  against  his  express  directions  will  be  affirmed  with- 
out discussion.^^  Where  the  remittitur  has  been  regularly 
issued  without  any  inadvertancy  it  cannot  be  recalled,®  and 
the  affirmation  of  the  judgment  reinvests  the  trial  court  with 
jurisdiction  to  enforce  its  judgment  without  any  order.' 

1  Penal  Code  1235;  People  v.  Johnson,  30  Cal.  102;  People 
V.  Cornell,  16  Cal.  187;  People  v.  Aubrey,  53  Cal.  427; 
People  V.  Apgar,  35  Cal.  389. 

2  People  V.  War,  20  Cal.  17. 

3  People  V.  Jordan,  65  Cal.  644. 

4  People  V.  Redinger,  55  Cal.  290. 

6  People  V.  Elkins,   122   Cal.   654;    People  v.   Redinger,   55 

Cal.  290. 
sapeople  vs.  Peller,  132  Cal.  615. 
6  People  V.  Sprague,  57  Cal.  147;  People  v.  McDermott,  97 

Cal.  248;  In  re  Levinson,  108  Cal.  459. 
?  People  V.  Dick.  39  Cal.  102. 


APPEAL.  461 


APPEALABLE  ORDERS. 


An  appeal  may  be  taken  by  the  defendant  from  a  final 
judgment  of  conviction  and  from  an  order  denying  a 
motion  for  a  new  trial.*  It  may  also  be  taken  from  an 
order  made  after  judgment,  affecting  his  substantial 
rights."  Thus,  an  order  fixing  the  date  of  execution  is 
appealable,^"  but  an  appeal  from  such  an  order  does  not 
stay  the  judgment,  and  is  of  no  effect  after  the  lapse  of 
the  time  fixed  for  the  execution.^^  Confinement  pending 
the  time  of  execution  is  involved  in  an  appeal  from  'the 
judgment,  and  is  res  ad  judicata  after  the  appeal  is 
decided.^^  The  defendant  has  no  appeal  from  an  action 
dismissing  the  prosecution  and  discharging  him  from 
custody,^^  nor  from  an  order  denying  his  motion  in  arrest 
of  judgment,^*  nor  from  an  order  overruling  a  demurrer 
to  the  indictment  or  information,^^  but  upon  an  appeal 
taken  by  the  defendant  from  a  judgment,  the  court  may 
review  any  intermediate  order  or  ruling  involving  the 
merits,  or  which  may  have  affected  the  judgment.^"  An 
appeal  may  be  taken  by  the  people  from  an  order  setting 
aside  the  indictment  or  information,^'  from  an  order  dis- 
missing the  cause  and  discharging  the  defendant,^^  from  a 
judgment  sub*taining  a  demurrer  to  the  indictment  or 
information,^"  but  such  an  order  is  not  appealable  when 
the   demurrer    questions   the    grade   of    the    offense    and 

8  Penal  Code  1237;   People  v.  Thompson,  115  Cal.  160. 

9  Penal  Code  1237;    People  v.  Clarke,  42  Cal.  622;    People 
V.  Ah  Kim,  44  Cal.  385. 

10  People  V.  Ebanks,  117  Cal.  652;  People  v.  Sprague,  54 
Cal.  92;  People  v.  McNulty,  95  Cal.  595;  People  v.  Dur- 
rani, 116  Cal.  209. 

11  People  V.  Ebanks,  120  Cal.  623. 

12  People  V.   Durrant,   116   Cal.   201. 

13  People  V.  Stokes,  102  Cal.  501. 

1+  People  V.  Majors,  65  Cal.  100;  People  v.  Cline,  83  Cal.  374. 

15  People  V.  Hall,  45  Cal.  253;  People  v.  Ah  Fong,  12  Cal. 
425. 

16  Penal  Code  1259. 

17  Penal  Code  1238;  People  v.  Young,  31  Cal.  564;  People  v. 
More,  68  Cal.  500;  People  v.  Simmons,  119  Cal.  1;  People 
V.  Stacey,  34  Cal.  307. 

18  People  V.  Giesea,  63  Cal.  345. 

19  Penal  Code  1238;  People  v.  Ah  Own,  3^  Cal.  604;  People 
V.  Martin,  47  Cal.  113. 


462  CRIMINAL  LAW  AND  PROCEDURE. 

leaves  the  matter  as  to  the  lesser  offense  untried.^"  The 
minutes  of  the  court  are  not  a  part  of  the  judgment  roll 
on  an  appeal  from  an  order  sustaining  a  demurrer,  but 
must  be  incorporated  in  a  bill  of  exceptions. ^^  The  peo- 
ple also  have  an  appeal  from  an  order  granting  a  new 
trial,  from  an  order  arresting  the  judgment,  from  an 
order  directing  the  jury  to  find  for  the  defendant,^^  and 
from  an  order  made  after  judgment,  affecting  the  sub- 
stantial rights  of  the  people. ^^  But  the  people  cannot  ap- 
peal from  an  order  setting  aside  an  information,^*  or  dis- 
missing the  action. ^°  An  appeal  by  the  people  can  be  had 
only  for  errors  committed  before  the  jeopardy  of  the 
defendant.^**  Intermediate  orders  are  not  appealable.  To 
be  appealable  the  order  must  be  final  ;-^  thus  an  order  refus- 
ing to  issue  a  commission  to  take  testimony  or  to  change 
the  place  of  trial  is  not  final,  and  is  reviewable  only  on 
an  appeal  from  the  final  judgment.^* 

RECORD    ON  APPEAL. 

The  transcript  must  show  that  a  notice  was  served  and 
filed. ^®  Two  appeals  can  not  be  taken  on  one  notice.^''" 
It  must  show  affirmatively  that  an  appeal  has  been  taken.^^ 
The  record  must  be  presented  by  a  bill  of  exceptions  or 
in  some  way  authenticated,''-  and  must  contain  evidence 
on  every  material  fact  to  be  proved.^^  The  presumption  is 
that   all   the   evidence   is   in   the   record.^*     On   an   appeal 

20  People  V.  Martin,  47  Cal.  112. 

21  People  V.  Long,  121  Cal.  494. 

22  Penal' Code  1238. 

23  Penal  Code  1238;  People  v.  Higglns,  114  Cal.  63. 

24  People  V.  Hollis,  65  Cal.  78;  People  v.  Higgins,  114  Cal. 
63. 

25  People  V.  More,  71  Cal.  546. 

20  People  V.  Webb,  38  Cal.  467;  People  v.  Campbell,  59  Cal. 
256;   People  v.  Horn,  70  Cal.  17. 

27  People  V.  Clarke,  42  Cal.  622. 

28  People  V.  Stillman,  7  Cal.   118. 

29  People  V.  Clark,  49  Cal.  455;   People  v.  Bell,  70  Cal.  34; 
People  V.  Colon,  119  Cal.  669. 

30  People  V.  Center,  61  Cal.  195. 

31  People  V.  Phillips,  45  Cal.  44;  People  v.  Bell,  70  Cal.  33; 
People  V.  Colon,  119  Cal.  669. 

32  People  V.  Brooks,  131  Cal.  311. 

33  People  V.  Griffith,  122  Cal.  212. 

34  People  V.  McGregar,  88  Cal.  140. 


APPEAL.  463 

from  the  judgment,  the  record  must  embody  the  judg- 
ment. The  entry  in  the  minutes  is  not  the  judgment. 
The  record  must  show  the  grounds  for  a  new  trial  and 
the  order  refusing  it.^'  Unidentified  papers  are  not  a  part 
of  the  record.^"  The  instructions,  when  duly  endorsed, 
belong  to  the  judgment  roll,  and  not  to  the  bill  of  excep- 
tions, and  the  form  given  in  the  judgment  roll  will  gov- 
ern over  those  given  in  the  bill  of  exceptions.^''  The 
opinion  of  the  trial  judge  is  not  properly  a  part  of  the 
record,  but  when  it  shows  a  new  trial  should  be  granted, 
the  record  will  be  closely  scrutinized  for  errors.^®  It  is 
the  official  duty  of  the  clerk  to  print  the  transcript  on 
appeal.  It  is  not  within  the  control  of  the  board  of  super- 
visors.^^ If  the  appeal  is  not  taken  in  time,  it  must  be 
dismissed.^"  And  where  it  has  been  dismissed  for  want 
of  prosecution  it  will  not  be  reinstated  unless  it  be  shown 
that  there  is  merit  in  it.*^  The  appeal  will  never  be  dis- 
missed on  the  ground  that  it   is   frivolous.*^ 

EFFECT    OF    APPEAL. 

The  appeal  from  a  judgment  suspends  its  force,  and  it 
cannot  be  used  as  evidence  in  another  action,*^  but  it  may 
be  used  to  impeach  a  witness  who  was  convicted  of  a  fel- 
ony thereby.**  An  appeal  to  the  United  States  Supreme 
Court  from  an  order  of  the  Circuit  Court,  denying  an 
application  for  a  writ  of  habeas  corpus,  stays  the  hands 
of  the  state  court  and  state  authorities  during  its  pendency, 
and  is  presumed  to  continue  as  a  stay  until  evidence  to 
the  contrary   is   shown.*^     The  merits  of  the  appeal  will 

35  People  V.  Lenon,  77  Cal.  308. 

36  People  V.  Louie  Foo,  112  Cal.  17. 

37  People  V.  Gibson,  106  Cal.  458. 

38  People  V.  Tapia,  131  Cal.  647. 

39  People  V.  Black,  120  Cal.  553. 

40  People  V.  Daniels,   105  Cal.   262;    People  v.   Varnum,   53 
Cal.  630. 

41  People  V.  Busby,  113  Cal.  181. 

42  People  V.  McNulty,  95  Cal.  594. 

43  People  V.  Murback,  64  Cal.  368;   People  v.  Gibbs,  98  Cal. 
655;  People  v.  Beevers,  99  Cal.  286. 

44  People  V.  Ward,  decided  Oct.  13,  1901. 

45  People  V.  Durrant,  119  Cal.  54. 


464  CRIMINAL  LAW  AND  PJROCKDURE. 

not  be  considered  in  determining  the  question  of  the  right 
to  a  stay  of  proceedings.'*" 

BILL    OF    EXCEPTIONS. 

An  exception  is  a  formal  protest  against  the  ruling  of 
the  court  upon  a  question  of  law ;  and  a  bill  of  exceptions 
is  a  statement  in  writing,  settled  and  signed  by  the  judge, 
of  what  the  ruling  was,  the  facts  in  view  of  which  it  was 
made,  and  the  protest  of  counsel.*^  A  bill  of  exceptions 
on  appeal  is  not  necessary  when  the  record  shows  error 
without  it,*^  but  is  necessary  to  review  the  evidence;** 
otherwise,  the  presumption  is  in  favor  of  the  judgment,'" 
and  the  verdict  will  not  be  disturbed  for  insufficiency  of 
the  evidence.^^  The  objections  should  be  presented  and 
exception  taken  in  the  court  below."'- 

'  HOW    PREPARED. 

Where  a  party  desires  to  have  the  exceptions  settled  in 
a  bill  of  exceptions,  the  draft  of  a  bill  must  be  prepared 
by  him  and  presented,  upon  notice  of  at  least  two  days  to 
the  adverse  party,  to  the  judge,  for  settlement,  within  ten 
days  after  the  order  or  ruling  complained  of  is  made, 
unless  further  time  is  granted,  or  within  that  period  the 
draft  must  be  delivered  to  the  clerk  of  the  court  for  the 
judge.  When  received  by  the  clerk,  he  must  deliver  it  to 
the  judge,  |or  transmit  it  to  him  at,  the  earliest  period 
practicable.  When  settled,  the  bill  must  be  signed  by  the 
judge,  and  filed  with  the  clerk  of  the  court.  If  the  judge 
in  any  case  refuses  to  allow  an  exception  in  accordance 
with  the  facts,  the  party  desiring  the  bill  settled  may 
apply  by  petition  to  the  Supreme  Court  to  prove  the  same, 
the  application  may  be  made  in  the  mode  and  manner,  and 

46  Ex  parte  Edgar,  119  CaL  123. 

47  People  V.  Torres,  38  CaL  141. 

48  People  V.  Maguire,  26  Cal.  635;   Morley  v.  Elkins,  37  Cal. 
457. 

49  People  V.  Padillia,  42  Cal.  535;  People  v.  Terrill,  131  CaL 
113. 

50  People  V.  Fowler,  88  Cal.  136. 

51  People  V.  Dye,  62  Cal.  523. 

62  People  V.   Sing  Lum,  61  Cal.   538;   People  v.  Goldenson, 
76  Cal.  346. 


APPEAL,  465 

under  such  regulations  as  that  court  may  prescribe;  and 
the  bill,  when  proven,  must  be  certified  by  the  chief  justice 
as  correct,  and  filed  with  the  clerk  of  the  court  in  which 
the  action  was  tried,  and  when  so  filed  it  has  the  same 
force  and  effect  as  if  settled  by  the  judge  who  tried  the 
cause.  If  the  judge  who  presided  at  the  trial  ceases  to 
hold  office  before  the  bill  is  tendered  or  settled,  he  may 
nevertheless  settle  such  bill,  or  the  party  may  apply  to 
the  Supreme  Court  to  prove  the  same.^^  The  proposed 
bill  may  refer  to  and  make  a  part  of  it  documents  in  other 
parts  of  the  record,  which  are  properly  identified,^*  but 
papers  unauthenticated  cannot  be  made  a  part  of  it.^''  Thus, 
a  charge  of  the  court  is  not  a  part  of  the  judgment  roll, 
unless  authenticated  by  the  court,^®  neither  are  the  pro- 
ceedings before  the  magistrate.®'^  Unauthenticated  affi- 
davits not  made  a  part  of  the  bill  of  exceptions  cannot 
be  considered  on  appeal,  as  they  are  not  a  part  of  the 
record.®^  In  order  to  make  them  a  part  of  the  record, 
affidavits  for  a  continuance,^*^  affidavits  to  the  incom- 
petency of  a  juror,^°  affidavits  used  on  a  motion,^^  the  rec- 
ord on  appeal  from  an  order  sustaining  a  demurrer,*^  and 
the  reporter's  notes,*^^  must  be  embodied  in  a  bill  of  excep- 
tions. The  record  in  the  Supreme  Court  cannot  be  cor- 
rected by  affidavits,"*  and  ought  not  to  be  duplicated  by  a 

53  Penal  Code  1174. 

54  People  V.  Wallace,  94  Cal.  497;  People  v.  Bartlett,  40  Cal. 
142;  Sharon  v.  Sharon,  79  Cal.  640;  Reclamation  Dis- 
trict V.  Hamilton,  112  Cal.  607. 

55  People  V.  Ah  Lee  Doon,  97  Cal.  171. 

56  People  V.  Flahave,  58  Cal.  249;  People  v.  January,  77 
Cal.   181. 

57  People  V.  Shurbrick,  57  Cal.  565. 

58  People  V.  McMahon,  124  Cal.  435;  People  v.  Price,  17  Cal. 
311;  People  v.  Mahoney,  77  Cal.  529;  People  v.  Louie  Foo, 
112  Cal.  21. 

59  People  V.  Weaver,  47  Cal.  106. 

60  People  V.  Stonecifer,  6  Cal.  405;  People  v.  Honshell,  10 
Cal.  86;  People  v.  Martin,  32  Cal.  92. 

01  People  V.  Honshell,  10  Cal.  83;  People  v.  Martin,  32  Cal. 
92. 

62  People  V.  Long,  121  Cal.  494. 

63  People  V.  Herbert,  61  Cal.  544. 

64  People  V.  Jordan,  66  Cal.  10;  Sharon  v.  Sharon,  67  Cal. 
219. 


CRIMES   --30 


466  CRIMINAL  LAW  AND  PROCEDURE. 

bill  of  exceptions."?  The  bill  should  follow  as  nearly  as 
possible,  the  narrative  form,""  and  the  exception  should 
^how  the  answers  to  the  questions  objected  to."^  The  bill 
is  presumed  to  contain  all  the  evidence;"*  it  is  the  duty  of 
•the  prosecution  to  embody  it  all  therein,"^  and  have  it 
«how  the  guilt  of  the  accused;^"  otherwise  it  will  be  pre- 
sumed that  the  verdict  is  contrary  to  the  evidence/^  The 
bill  should  contain  the  grounds  relied  upon  for  a  new 
trial,  and  so  much  of  the  evidence,  proceedings  and  deci- 
sions as  may  be  necesssary  to  explain  such  ground,''^  and 
present  the  questions  of  law  upon  which  the  exceptions 
were  taken. ^^  There  is  no  difference  in  form  between,  a  bill 
of  exceptions  and  a  statement  on  motion  for  a  new  trial.''* 

SPECIFICATIONS    OF    ERRORS. 

Specifications  of  errors  cannot  be  considered  where  the 
bill  does  not  show  the  occurrence  of  the  error  specified,^' 
and  where  there  is  no  assignment  of  errors  or  statement 
of  points  and  authorities,  the  appeal  will  be  dismissed,''" 
or  the  judgment  will  be  affirmed.''''  The  court  will  not 
review   errors  not  excepted  to,^*  nor  will   it  consider  on 

66  People  V.  Cole,  127  Cal.  545. 

66  People  V.  Getty,  49  Cal.  581. 

67  People  V.  Graham,  21  Cal.  261;  People  v.  White,  34  Cal. 
188. 

«8  People  V.  McGregar,  88  Cal.  140. 

69  People  V.  Buckley,  116  Cal.  146;  People  v.  Dye,  62  Cal. 
524;  People  v.  English,  52  Cal.  211;  People  v.  Perdue, 
49  Cal.  425;  People  v.  Tipton,  73  Cal.  405. 

70  People  V.  Olivie,  60  Cal.  69. 

71  People  V.  Fisher,  51  Cal.  319;  People  v.  Dye,  62  Cal.  524; 
People  V.  Johnson,  91  Cal.  270;  People  v.  Buckley,  116 
Cal.  148;   People  v.  Griffith,  122  Cal.  212. 

72  People  V.  Keyser,  53  Cal.  183;  Lim  Tai  v.  Hewill,  56 
Cal.  118. 

73  Penal  Code  1175. 

74  People  V.  Crane,  60  Cal.  279;  People  v.  Bitancourt,  74 
Cal.  190. 

TO  People  V.  Faulke,  96  Cal.  17;  People  v.  Bemmerly,  38 
Cal.  303. 

76  Peeple  v.  Comedo,  11  Cal.  71. 

77  People  V.  Goldbury,  10  Cal.  313. 

78  People  V.  Morino,  85  Cal.  515. 


APPEAL.  467 

appeal,  errors  not  argued  b)''  the  appellant/"  except  in  cases 
of  murder  of  the  first  degree  where  the  sentence  is  death.®" 

HOW     SETTLED. 

A  written  notice  to  the  district  attorney  of  the  time  and 
place  of  settlement  is  required.^  The  judge  may  refuse 
to  settle  where  a  notice  is  not  so  given. ^  The  Supreme 
Court  will  not  consider  a  petition  on  an  application  for  a 
writ  of  mandate  to  compel  the  filing  of  a  bill  of  exceptions 
if  it  fails  to  show  that  the  bill  was  presented  to  the  trial 
judge  for  settlement  upon  the  notice  required  by  law  to 
be  given  to  the  district  attorney.^  The  judge  may  add 
any  testimony  given  pertinent  to  the  exception,  correct 
any  errors  therein,*  and  strike  out  all  matters  not  neces- 
sary to  present  the  questions  of  law  upon  which  the  excep- 
tions were  taken. °  The  statement  should  be  prepared  and 
tendered  within  the  statutory  time,  or  such  further  time 
as  may  be  allowed  by  the  judge.®  But  the  time  fixed  by 
the  statute  for  the  settlement  of  the  bill  of  exceptions  is 
merely  directory,'^  and  a  failure  to  sign  within  the  time 
prescribed  by  law  will  not  defeat  the  right  of  appeal.®  If 
the  bill  is  settled  after  the  statutory  time  has  run,  the 
Supreme  Court  will  presume  that  sufficient  reason  existed 
therefor,®  and  in  the  absence  of  a  showing  to  the  contrary 
that   the    bill    was    regularly    signed    by   the   judge.^°     It 

80  People  V.  Clark,  121  Cal.  633. 

1  Page   V.   Superior  Court,   122   Cal.   209. 

2  People  V.  Sprague,  53  Cal.  422;  Frazer  v.  Superior  Court, 
62  Cal.  50;  January  v.  Superior  Court,  73  Cal.  540;  Peo- 
ple V.  Goldenson,  76  Cal.  328;  People  v.  Hill,  78  Cal.  406; 
People  V.  Raschke,  73  Cal.  379. 

3  Anschlag  v.  Superior  Court,  76  Cal.  513. 

4  People  V.  Kelly,  46  Cal.  356. 

5  Penal  Code  1175. 

6  People  V.  Lee,  14  Cal.  516;  People  v.  Sprague,  53  Cal.  424. 

7  People  V.  White,  34  Cal.  183;  People  v.  Woppner,  14  Cal. 
437;  People  v.  Lee,  14  Cal.  511;  People  v.  Sprague,  53  Cal. 
424;  People  v.  Goldenson,  76  Cal.  351. 

8  People  V.  Martin,  6  Cal.  477;  People  v.  Woppner,  14  Oal, 
438. 

9  People  V.  Raschke,  73  Cal.  378;  People  v.  Lee,  14  Cal.  511; 
People  V.  White,  34  Cal.  188;  People  v.  Sprague,  53  Cal. 
424. 

10  People  V.  Martin,  G  Cal.  477;  People  v.  Robinson,  17  Cal. 

371. 
79  People  V.   Gibson,   106   Cal.   458;    People  v.  Woon  Tuck 

Wo,  120  Cal.  2944  People  v.  Breen,  130  Cai.  V2. 


468  CRIMINAL  LAW  AND  PROCEDURE. 

must  be  settled  by  the  judge,  the  attorneys  cannot  do  it,^* 
and  a  certificate  to  that  effect  must  be  added  thereto."  It 
may  be  delivered  to  the  clerk  whenever  the  judge  cannot 
be  found. ^^  A  statement  and  a  bill  of  exceptions  under 
the  statutes  fixing  time  for  settlement  are  identical.^*  The 
defendant,  after  conviction,  is  entitled  to  a  stay  of  pro- 
ceedings until  the  bill  may  be  settled,  provided  he  exer- 
cises proper  diligence,  and  if  refused  by  the  trial  court, 
the  chief  justice  of  the  Supreme  Court  will  grant  a  stay 
pending  an  application  for  a  certificate  of  probable  cause 
to  the  Supreme  Court. ^°  Where  the  bill  is  contradicted 
by  the  minutes  of  the  court,  the  latter  govern  on  appeal.^' 
It  is  unnecessary  to  incorporate  in  the  bill  errors  against 
the  respondent,  as  they  cannot  be  considered  on  an  appeal.^' 

CERTIFICATE    OF    PROBABLE    CAUSE. 

An  appeal  to  the  Supreme  Court  from  a  judgment  of 
conviction  stays  the  execution  of  the  judgment  in  all  capital 
cases,  and  in  all  other  cases  upon  filing  with  the  clerk  of 
the  court  in  which  the  conviction  was  had,  a  certificate  of 
the  judge  of  such  court,  or  of  a  justice  of  the  Supreme 
Court,  that,  in  his  opinion,  there  is  probable  cause  for  the 
appeal,  but  not  otherwise.^^  A  certificate  of  probable 
cause  for  appeal  is  not  equivalent  to  a  certificate  of  proba- 
ble grounds  for  reversal  of  the  judgment,  but  only  that 
debatable  questions  are  presented  by  the  record.^"  It 
should  be  granted  unless  the  case  is  so  clear  as  to  admit  of 
no  doubt.-"  It  is  the  duty  of  the  trial  judge  in  such  cases 
to  grant  the  certificate;  it  will  be  granted  by  the  Supreme 

11  People  V.  Ferguson,  34  Cal.  309;  People  v.  Trim,  37  Cal. 
275;   People  v.  Padlllia,  42  Cal.  538. 

12  People  V.  Trim,  37  Cal.  274;  People  v.  Padillia,  42  Cal.  539. 

13  People  V.  Lee,  14  Cal.  511;  People  v.  Sprague,  53  Cal.  424; 
Sprague  v.  Fawcett,  53  Cal.  409. 

14  People  V.  Lee,  14  Cal.  511;  People  v.  Sprague,  53  Cal.  424; 
People  V.  Crane,  60  Cal.  280. 

15  People  V.  Lane,  96  Cal.  596. 
ic  People  V.  O'Brien,  88  Cal.  483. 
IT  People  V.  Noregea,  48  Cal.  123. 

18  Penal  Code  1243. 

19  In  re  Adams,  81  Cal.  163;  People  v.  Durrant,  119  Cal.  202. 

20  People  V.  Valencia,  45  Cal.  304;  In  re  Adams,  81  Cal.  167. 


APPEAL.  -ffiG 

Court  only  where  the  trial  judge  is  absent  and  the  other 
judges  of  the  county  refuse  to  grant  it.-^  Where  the  trial 
court  refuses  a  certificate  of  probable  cause,  the  remedy  for 
it  is  not  by  appeal,  but  by  application  to  a  justice  of  the 
Supreme  Court.--  The  Supreme  Court  will  not  interfere 
until  the  record  is  presented  on  appeal,^*  and  will  grant  the 
certificate  only  on  notice  to  the  District  Attorney  and  on  a 
settled  bill  of  exceptions,-*  but  will  grant  the  defendant  a 
reasonable  stay  until  the  record  can  be  prepared. ^^  The  im- 
prisonment, if  a  part  of  the  penalty,  is  not,  stayed  without 
a  certificate  of  probable  cause. ^^  An  appeal  from  an  order 
fixing  the  date  of  the  execution  does  not  ipso  facto  stay  the 
execution,  but  there  must  be  a  certificate  of  probate  cause.^'' 
After  the  dismissal  of  an  appeal  the  defendant  will  be  re- 
committed, notwithstanding  no  certificate  of  probable  cause 
was  filed  staying  the  execution. ^^ 

PRESUMPTION    AGAINST    ERROR. 

On  appeal  error  must  affirmatively  appear.  The  legal 
presumption  is  against  it,-**  and  in  favor  of  the  validity  of 
the  court  and  the  regularity  of  its  proceedings  in  the 
absence  of  an  affirmative  showing  to  the  contrary.-''^     Thus 

21  People  V.  Clark,  125  Cal.  251. 

22  People  V.  Durrant,  119  Cal.  202. 

23  People  V.  Clark,  125  Cal.  251. 

24  In  re  Adams,  81  Cal.  163;  People  v.  Lane,  96  Cal.  596. 

25  In  Matter  of  Adams,  81  Cal.  163. 

■    26  Ex  parte  Fredericks,  104  Cal.  400. 

27  People  V.  McNulty,  95  Cal.  594. 

28  Ex  parte  Whltty,  65  Cal.  168. 

29  People  V.  Williams,  84  Cal.  616;  People  v.  Holmes,  118 
Cal.  449;  People  v.  Neary,  104  Cal.  373;  People  v.  Grun- 
dell.  75  Cal.  301;  O'Callaghan  v.  Bode,  84  Cal.  498;  People 
V.  Winters,  29  Cal.  659;  People  v.  Ebanks,  117  Cal.  665; 
People  V.  Barton,  88  Cal.  178;  People  v.  Buckley,  116 
Cal.  148;  People  v.  Marks,  72  Cal.  46;  People  v.  Von, 
78  Cal.  1;  People  v.  Leong  Sing,  77  Cal.  117;  People  v. 
Tonielli,  81  Cal.  279;  People  v.  Johnson,  88  Cal.  175; 
People  V.  Huff,  72'  Cal.  117;  People  v.  Cline,  83  Cal.  376; 
People  V.  Bemmerly,  98  Cal.  299;  People  v.  Arlington, 
131  Cal.  231;  People  v.  Sansome,  98  Cal.  235;  People  v. 
Gillis,  97  Cal.  542. 

80  People  V.  McAuslan,  43  Cal.  55;  People  v.  Woods,  43  Cal. 
177;  People  v.  Lum  Yit,  83  Cal.  132;  People  v.  Williams, 
45   Cal.   25;    People  v.   Stanley,   47   Cal.   120;    People  v. 


470  CRIMINAL  LAW  AND  PROCEDURE. 

it  is  presumed,  where  the  transcript  does  not  embrace  all  the 
evidence,  that  proof  of  venue  was  made,^^  that  the  jury 
regarded  and  considered  all  of  the  instructions,^^  that  the 
instructions  did  ho  injury  to  the  defendant,^^  and  that  they 
were  correct^*  unless  they  are  wrong  under  every  con- 
ceivable state  of  facts,^^  that  an  oral  charge  of  the  court 
was  taken  down  by  the  reporter,^**  that  instructions  refused 
had  no  evidence  to  support  them,^'  and  that  the  court  cor- 
rected objectionable  remarks  of  the  district  attorney,  and 
instructed  the  jury  to  disregard  them.^^  But  where  the 
record  on  appeal  is  presented,  the  court  will  not  presume 
that  other  proceedings  than  those  shown  were  had.^®  The 
instructions  unless  wrong  under  every  conceivable  state  of 

Brotherton,  47  Cal.  405;  People  v.  Marks,  72  Cal.  47; 
People  V.  Huff,  72  Cal.  119;  People  v.  Leong  Sing,  77 
Cal.  119;  People  v.  Gibson,  106  Cal.  472;  People  v.  Bar- 
bour, 9  Cal.  230;  People  v.  Robinson,  17  Cal.  371;  People 
V.  Ludwig,  118  Cal.  328;  People  v.  Cummingfa,  113  Cal. 
88;  People  v.  Wheatley,  88  Cal.  Ii4;  People  v.  Owens, 
123  Cal.  482;  People  v.  Gibson,  106  Cal.  458;  People  v. 
Reilly,  106  Cal.  650;  People  v.  Ebanks,  117  Cal.  665; 
People  V.  Connor,  17  Cal.  354;  People  v.  Hobson,  17 
Cal.  430;  People  v.  Blackwell,  27  Cal.  67;  People  v. 
Henderson,  28  Cal.  475;  People  v.  Richmond,  29  Cal. 
415;  People  v.  Lawrence,  21  Cal.  372;  Ex  parte  Bull, 
42  Cal.  196;  People  v.  Creegan,  121  Cal.  554;  People  v. 
Mitchell,  100  Cal.  328;  People  v.  Ross,  115  Cal.  233; 
People  V.  Swafford,  65  Cal.  223. 

31  People  V.  Carroll,  80  Cal.  153;  People  v.  Tonielll,  81 
Cal.  279;    People  v.  Barton,  88  Cal.  178. 

32  People  V.  Durrant,    116   Cal.   181. 

33  People  V.  Brotherton,  47  Cal.  288. 

34  People  V.  Johnson,  47  Cal.  122;  People  v.  Best,  39  Cal. 
691;  People  v.  Long,  39  Cal.  694;  People  v.  Dick,  34  CaL 
663;  People  v.  Smith,  57  Cal.  131;  People  v.  Barry,  31 
Cal.  357;  People  v.  Dick,  32  Cal.  215;  People  v.  Wil- 
liams, 75  Cal.  306. 

85  People  V.  Donguli,  92  Cal.  607;  People  v.  Bourkt,  66 
Cal.  456;  People  v.  Bonney,  19  Cal.  427;  People  v.  Strong, 
46  Cal.  303;  People  v.  Smith,  57  Cal.  132;  People  T. 
Ramirez,  56  Cal.  538;  People  v.  Torres,  38  Cal.  143; 
People  V.  Levison,  16  Cal.  99;  People  v.  King,  27  Cal. 
514. 

3c  People  V.  Bourke,  66  Cal.  455. 

37  People  V.  Gilbert,  60  Cal.  108;  Carpenter  v.  Ewing,  76 
Cal.  488. 

38  People  V.  Monila,  126  Cal.  505. 

30  People  V.  Gaines,  52  Cal.  479;  People  v.  Moore,  103  CaL 
511;   People  v.  Kelly,  120  Cal.  273. 


APPEAL.  471 

facts  will  not  be  reviewed  in  the  absence  of  the  testimony/^ 
nor  irregrilarities  considered  in  the  absence  of  objection 
and  exception.*^  But  error  when  shown  is  presumed  to  be 
prejudicial  to  the  defendant/'-  unless  the  contrary  plainly 
appears  from  the  face  of  the  record.*^ 

REVIEW   OF   EVIDENCE. 

Evidence  cannot  be  reviewed  on  appeal,  unless  a  bill  of 
exceptions  is  presented.*'*  The  record  must  contain  the 
material  portions  of  the  testimony,*^  but  in  order  to  review  it 
for  insufficiency,  that  must  have  been  one  of  the  grounds  of 
the  motion  for  a  new  trial.*^  Where  the  evidence  is  insuf- 
ficient to  sustain  the  conviction  it  will  be  reversed,  although 
the  defendant  made  a  false  statement  as  to  a  matter  in  no 

40  People  V.  Clark,  121  Cal.  633;  People  v.  McCauley,  1 
Cal.  380;  People  v.  Baker,  1  Cal.  404;  People  v.  i^afuente, 
6  Cal.  202. 

41  People  V.  Torres,  38  Cal.  142. 

42  People  V.  Smith,  93  Cal.  445;  People  v.  Murphy,  47  Cal. 
103;  People  v.  Ybarra,  17  Cal.  166;  People  v.  Ramirez, 
56  Cal.  538;  Ex  parte  Bernert,  62  Cal.  528;  People  v. 
Eppinger,  109  Cal.  297;  People  v.  Stanley,  47  Cal.  113; 
People  V.  Williams,  18  Cal.  187;  People  v.  Furtado,  57 
Cal.  345;  People  v.  Tucker,  115  Cal.  339;  People  v. 
Marshall,  112  Cal.  422. 

43  People  V.  Nelson,  85  Cal.  422;  People  v.  Gordon,  88  Cal. 
422;  People  v.  Murray,  85  Cal.  350;  People  v.  Bbanks, 
117  Cal.  665;  People  v.  Russell,  81  Cal.  6i6;  People  v. 
Barnhart,  59  Cal.  381;  People  v.  Muhlner,  115  Cal.  306; 
People  V.  Maroney,  ±09  Cal.  279;  People  v.  Lowen,  109 
Cal.  384;  People  v.  Brotherton,  47  Cal.  384;  People  v. 
Murback,  64  Cal.  372;  People  v.  Campbell,  59  Cal.  256; 
People  V.  Olsen,  80  Cal.  122;  People  v.  Elliott,  80  Cal. 
296;  People  v.  Daniels,  105  Cal.  262;  People  v.  Bennett, 
65  Cal.  267;  People  v.  O'Neal,  67  Cal.  378;  People  v. 
Boling,  83  Cal.  382;  People  v.  Gordon,  88  Cal.  425;  People 
V.  Clark,  106  Cal.  40;  People  v.  Tarm  Poi,  86  Cal.  225; 
People  V.  Ah  Kong,  49  Cal.  6;  People  v.  Barthleman, 
120  Cal.  7;  People  v.  Clary,  72  Cal.  59;  People  v.  Shaw, 
111  Cal.  171;  People  v.  Smith,  105  Cal.  676;  People  v. 
Fenwick,  45  Cal.  287;  People  v.  Plummer,  12  Cal.  256; 
People  V.  Ah  Jake,  91  Cal.  98;  People  v.  McGregar,  88 
Cal.  140;  People  v.  Parton,  49  Cal.  632;  Ex  parte  Ber- 
nert, 62  Cal.  528;  People  v.  Winters,  93  Cal.  277. 

44  People  V.  Martin,  32  Cal.  91;  People  v.  Padillia,  42  Cal. 
539;   People  v.  Teeherow,  40  Cal.  286. 

45  People  V.  Yorke,  9  Cal.  421;  People  v.  Roach,  48  Cal. 
382. 

4s  People  V.  Crowley,  100  Cal.  478. 


472  CRIMINAL  LAW  AND  PROCEDURE. 

way  connected  with  the  crime  of  which  he  was  accused.*' 
The  order  granting  a  new  trial  will  not  be  reversed  on 
appeal  for  an  abuse  of  discretion  by  the  trial  court.** 

CONFLICTING    EVIDENCE. 

Where  the  evidence  in  the  case  is  conflicting,  it  presents 
a  question  for  the  jury,*"  and  a  verdict  will  not  be  disturbed 
on  appeal. ^^  It  is  only  when  there  is  a  clear  failure  of 
proof  upon  some  material  point,^^  or  it  is  manifest  from  the 
testimony  that  the  verdict  was  the  result  of  great  excite- 
ment which  prevented  a  fair  and  just  trial,^^  or  the  evi- 
dence preponderates  so  greatly  against  the  verdict 
as  to  render    it    clear    that    the    jury    must    have    acted 

■i^  People  v.  Wong  Ah  You,  67  Cal.  31. 

48  People  V.  Lum   Ylt,   83   Cal.    130;    People   v.   Flood,   102 

Cal.  333;   People  v.  Knutte,  111  Cal.  455. 
«  People  V.  Cole,  127  Cal.  545. 
50  People  V.  Estrada,    53    Cal.    600;    People   v.    Lowen,   109 

381;     People  v.   Ah   Tl,   9    Cal.    17;     People    v.    Vance, 

21   Cal.   400;    People  v.  Durrant,  116  Cal.  201;  People  v. 

Emerson,  130  Cal.  562;   People  v.  Brown,  130  Cal.  591; 

People  V.  O'Brien,  130  Cal.  1;   People  v.  Dice,  120  Cal. 

189;   People  v.  Kaiser,  119  Cal.  456;   People  v.  Holmes, 

118  Cal.  444;   People  v.  Brittan,  118  Cal.  409;   People  v. 

Neary,  104  Cal.  373;   People  v.  Fice,  97  Cal.  459;   People 

V.   Arthur,  93   Cal.   536;    People  v.   Lewis,   l^t   Cal.   551; 

People  V.  Phelan,  123  Cal.  551;   People  v.  Bezy,  73  Cal. 

186;  People  v.  Brady,  72  Cal.  490;  People  v.  Gill,  45  Cal. 

285;   People  v.  Doane,  77  Cal.  560;    People  v.  Appleton, 

120  Cal.  250;   People  v.  Wilson,  119  Cal.  384;    People  v. 

Forsythe,   65   Cal.   101;    People  v.   Geiger,  116   Cal.   440; 

People  V.  Kloss,  115  Cal.   567;    People  v.   Un  Dong,   106 

Cal.  83;  People  v.  Brooks,  90  Cal.  174;  People  v.  Dunne, 

80  Cal.  34;   People  v.  Leyshon,   108  Cal.   440;    People  v. 

Roemer,  114  Cal.   51;    People  v.  Rushing,  130  Cal.  449; 

People  V.    Swalm,  80  Cal.  49;    People  v.  Brown,  27  Cal. 

500;   People  v.  Keeley,  81  Cal.  210;   People  v.  Ross,  115 

Cal.  233;   People  v.  Chun  Heong,  86  Cal.  329;   People  v. 

Lon  Yeck,  123   Cal.  246;    People  v.  Bene,   130  Cal.   159; 

People  V.  Sears,  119  Cal.  267;   People  v.  Ryan,  108  Cal. 

581;    People    v.    Fitchpatrick,    106    Cal.    286;    People    v. 

Bidleman,    104   Cal.    608;    People   v.    Hong   Quin   Moon, 

92   Cal.  41;    People  v.  McCurdy,   68  Cal.   576;    People  v. 

Simpson,  50  Cal.  304;    People  v.  Bird,  60  Cal.  7;  People 

V.  Soap.  127  Cal.  408;   People  v.  Lee,  119  Cal.  84;  People 

V.  Scott,  121  Cal.  101. 
Bi  People  V.  Smallman,  55  Cal.  185;   People  v.  Kuches,  120 

Cal.  569. 
C2  People  V.  Acosta,  10  Cal.  196. 


APPEAL.  478 

under  the  influence  of  passion  or  prejudice,'''^  that  the 
appellate  court  will  interfere  and  disturb  the  verdict.  A 
verdict  based  on  conflicting  evidence  will  not  be  disturbed, 
notwithstanding  some  of  the  circumstances  forming  a  part 
of  the  res  gestae  are  unusual."*  But  the  rule  applicable  to 
conflicting  evidence  does  not  prevent  a  review  of  the  facts 
where  the  evidence,  if  taken  as  true,  does  not  establish  an 
offense.^'  This  rule  is  founded  on  the  fact  that  the  jury 
had  the  opportunity  to  observe  the  demeanor  of  the  wit- 
nesses and  is  therefore  more  competent  than  the  appellate 
court  to  decide  upon  their  credibility.  The  rule  is  a  most 
salutary  one  and  ought  not  to  be  lightly  departed  from. 
Nevertheless,  there  are  exceptional  cases  in  which  the  pre- 
ponderance of  evidence  against  the  verdict  is  so  great  as 
to  produce  a  conviction,  that  in  rendering  it  the  jury  must 
have  been  under  the  influence  of  passion  or  prejudice.^^ 

INSUFFICIENCY    OF    EVIDENCE. 

The  rule  for  insufiiciency  of  evidence  is  the  same  as  that 
for  conflicting  evidence,  and  the  verdict  will  not  be  dis- 
turbed except  where  there  is  a  failure  of  proof  in  some  par- 
ticular necessary  to  a  conviction,  and  the  question  is  one 
of  law  and  not  of  fact.^"  The  sufficiency  of  evidence  is  a 
question  for  the  jury.^^  On  appeal  the  court  will  not  deal 
with  a  question  of  mere  preponderance  of  the  evidence.'® 
This  is  a  question  for  the  trial  court,  and  if  that  court  is 
satisfied  from  a  review  of  the  evidence  that  it  is  not  suf- 
ficient, it  should  grant  a  new  trial.""     Where  the  verdict 

^■'-  People  V.  Manning,  48  Cal.  335;  People  v.  Durrant,  116 
Cal.  201;  People  v.  Wong  Cheng  Suey,  110  Cal.  121; 
People  V.  Ah  Loy,  10  Cal.  301;  People  v.  Brown,  27  Cal. 
501. 

6+  People  V.  Logan,   123  Cal.   414. 

65  People  V.  O'Brien,  106  Cal.   104. 

56  People  V.  Hamiltcn,  46  Cal.  54S. 

57  People  V.  Darr,  61  Cal.  554;  People  v.  Eagan,  116  Cal. 
291;  People  v.  Hurley,  60  Cal.  74;  People  v.  Durrant, 
116  Cal.   201. 

58  People  V.  Ne'iscn,  85  Cal.  422;  People  v.  Mayes,  66  Cal. 
597. 

59  People  V.  Ashnauer,   47   Cal.  94. 

60  People  V.  Lum  Yit,  83  Cal.  134;  People  v.  Flood,  102  Cal. 
333;   People  v.  Knutte,  111  Cal.  456. 


474  CRIMINAL    LAW   AND    PROCEDURE. 

of  the  jury  is  based  upon  legal  evidence,  it  is  absolutely 
final  on  appeal  and  not  subject  to  review.*^  If  the  evidence 
tends  in  any  way  to  sustain  the  verdict®^  or  preponderates 
in  favor  of  it,  the  verdict  will  not  be  disturbed."' 

OBJECTIONS  TO  THE  ADMISSION  OF  EVIDENCE. 

Errors  in  ruling  on  evidence  will  not  be  considered  on 
appeal  without  the  objections  thereto  are  stated.®*  If  no 
objections  are  made  in  the  court  below,  errors  in  the  admis- 
sion or  rejection  of  evidence  will  not  be  reviewed*"  as 
objections  cannot  be  made  for  the  first  time  in  the  Supreme 
Court.®®  They  must  be  taken  in  the  court  below.®^  A 
failure  to  object  is  a  waiver  of  its  incompetency."*  There 
must  be  an  objection,  a  decision  and  an  exception."'-'  The 
objection  must  be  made  at  the  time  the  evidence  is  offered.''" 
Where  evidence  is  admitted  without  objection,  the  party 
has  no  right  to  have  it  striken  out.'"^  Objection  to  the 
weight  of  evidence  does  not  render  it  inadmissible."^ 
Informal  objections  will  not  be  considered,"  but  objection 
is  sufficient  when  it  is  understood  by  all  the  parties.'^* 
Errors  on  admission  of  immaterial  evidence  are  not  revers- 
ible when  not  prejudicial."  The  exception  must  be  taken 
at  the  time  of  the  objection  and  ruling.'"    It  must  be  made 

01  People  V.  Maroney,  109  Cal.  277. 
«2  People  V.  Wilson,   66  Cal.  370. 
63  People  V.  Alseml,  85  Cal.  434. 

6*  People  V.  GiDson,  106  Cal.  458;  People  v.  Woon  Tuck 
Wo,   120  Cal.   298.  ■ 

65  People  V.  Balrd,  105  Cal.  126. 

66  People  V.  Northey,  77  Cal.  620. 

67  People  V.  Keeley,  81   Cal.  210. 

68  People  V.  Smith,  121  Cal.  355. 

60  People  V.  Sanford,   43   Cal.   29;    People   v.   Westlake,   62 

Cal.  309. 
TO  People  V.  Salorse,  62  Cal.  139;   People  v.  Moan,  65  Cal. 

532. 

71  People  V.  Patterson,  124  Cal.  102. 

72  People  V.  Martin,  102  Cal.  558;  People  v.  Butler,  8  Cal. 
440;    People  v.   Brotherton,  47   Cal.  405. 

73  People  V.  Yee  Fook  Din,  106  Cal.  163;  People  v.  Wong 
Chuey,  117  Cal.  624;  People  v.  Shattuck,  109  Cal.  678; 
People  V.  Miller,  122  Cal.  84. 

74  People  V.  Shattuck,  109  Cal.  673. 

75  People  V.  Fick,  89  Cal.  144. 

70  People  V.  Coffman,  24  Cal.  230. 


APPEAL.  475 

SO  as  to  leave  no  doubt  as  to  the  precise  grounds  for  it." 
A  general  objection  to  the  admission  of  evidence  is  insuf- 
ficient/* and  cannot  be  made  specific  on  appeal  f^  it  must 
be  specific.*"  The  objection  will  be  confined  to  the  one  taken 
at  the  trial. *^  But  the  court  and  prosecutor  should  be  lib- 
eral in  regard  to  objections  of  defendant  and  resolve  a 
doubt  in  his  favor.*^  A  premature  objection  to  a  prelimin- 
ary question  is  properly  overruled.*^  Evidence  apparently 
irrelevant  should  have  its  purpose  stated  when  offered.** 
But  when  not  limited  it  may  be  used  for  any  purpose  for 
which  it  is  competent.*^  The  trial  judge  should  be  in- 
formed in  some  way  as  to  the  particular  matters  intended 
to  be  proved  by  the  answer  of  the  witness.^**  An  objection 
and  exception  need  only  be  taken  once  and  are  sufficient  as 
to  all  such  evidence.^'  It  need  not  be  repeated  to  every 
question,  when  the  same  line  of  evidence  has  been  clearly 
and  pointedly  objected  to  several  times. ^^  Leading  ques- 
tions are  within  the  discretion  of  the  trial  court. *^ 

T7  People  V.  Owens,  123  Cal.  422;   People  v.  Frank,  28  Cal. 

519;    People  v.  Mahoney,   77   Cal.    533;    People  v.   Louie 

Foo,  112  Cal.  23. 
T8  People  V.  Apple,   7    Cal.   290;    People   v.   Glenn,   10   Cal. 

37;    People  v.  Chee  Kee,  61  Cal.  405. 
70  People  V.  Glenn,    10    Cal.    37;    People    v.    Chee   Kee,    61 

Cal.  405. 

80  People  V.  Nelson,  85  Cal.  421;  People  v.  Mahoney,  77 
Cal.  529;  People  v.  Louie  Foo,  112  Cal.  21;  People  v. 
Clark,  130  Cal.  642;  People  v.  Conkling,  111  Cal.  616; 
People  V.  Sehorn,  116  Cal.  503;  People  v.  Bush,  68  Cal. 
623;  People  v.  Hickman,  113  Cal.  88;  People  v.  Frank, 
28  Cal.  507;  People  v.  Eckman,  72  Cal.  583;  People  v. 
Manning,  48  Cal.  335;  People  v.  Chee  Kee,  61  Cal.  405; 
Brumley  v.  Flint,  87  Cal.  474;  People  v.  Rodley,  131 
Cal.   240. 

81  People  V.  Louie  Foo,  112  Cal.  17;  People  v.  Sehorn, 
116   Cal.    510. 

82  People  V.  Southern,   120   Cal.   645. 

83  People  V.  Bidleman,   104   Cal.  608. 

84  People  V.  Shaw,  111  Cal.  171. 

85  People  V.  Smith,  121  Cal.  355. 

86  People  V.  Schell,  123  Cal.  360. 

87  People  V.  Castro,  125  Cal.  521. 

88  People  V.  Mullings,   83  Cal.  138. 

80  People  V.  Brown,  130  Cal.  591;  People  v.  Clary,  72  CaL 
59;  People  v.  Shem  Ah  Fook,  64  Cal.  380;  People  T. 
Goldenson,  76  Cal.  349;  People  v.  Fong  Ah  Sing,  70  CaL 


4?3!6  CRIMINAL  LAW  AND  PROCEDURE. 

THE   ORDER  OF   PROOF. 

The  trial  court  has  a  reasonable  discretion  in  determining 
the  preliminaries  of  the  trial,®"  and  the  order  of  proof.®^ 

ERRORS  FAVORABLE  TO  THE  DEFENDANT. 

Errors  in  ruling  on  evidence  where  the  answers  are 
favorable  to  the  defendant  are  harmless  and  cannot  be  re- 
viewed on  appeal.^  Error  in  the  exclusion  of  evidence  is 
cured  by  its  subsequent  admission,-  and  in  its  admission 
by  striking  it  out  and  instructing  the  jury  to  disregard  it.' 
When  already  received  without  objection,  it  may  be  re- 
peated,* and  the  consent  of  the  defendant  to  its  admission 
where  objection  might  have  been  made,  renders  its  admis- 
sion proper.^  Objection  is  waived  by  the  defendant's  sub- 
sequent testifying  to  the  same  fact,"  or  his  introduction 
of  evidence  to  the  same  effect."  The  error  in  the  admis- 
sion of  hearsay  evidence  is  not  cured  by  instruction  to  the 
jury  that  the  defendant  is  not  bound  by  anything  said  out 
of  defendant's  presence.^  Where  the  evidence  is  unprejudi- 
cial  the  error  should  be  disregarded.®  A  motion  to  strike 
out   should   not   be   allowed   where   the   evidence  is   given 

00  People  V.  Stonecifer,  6  Cal.  405. 

91  People  V.  Yokum,  118  Cal.  437;  People  v.  Brotherton, 
47  Cal,  388;  People  v.  Jones,  123  Cal.  65;  People  v.  Van 
Horn,  119  Cal.  323;  Bates  v.  Tower,  103  Cal.  406;  People 
V.  Daniels,  105  Cal.  262;  People  v.  Mayes,  113  Cal.  618; 
People  V.  Shainwood,  51  Cal.  468;  People  v.  Teixeira,  123 
Cal.  297. 

1  People  V.  Barney,  114  Cal.  554;  People  v.  Donaldson, 
70  Cal.  116;  People  v.  Chin  Hane,  108  Cal.  597;  People  v. 
Clark,  106  Cal.  32;  People  v.  Brown,  76  Cal.  574;  People 
V.  Mullings,  83  Cal.  146. 

2  People  V,  Ross,  115  Cal.  233;  People  v.  Howard,  112 
Cal.  135;  People  v.  Johnson,  106  Cal.  289;  People  v. 
Plyler,  126  Cal.  379;  People  v.  Wong  Chuey,  117  Cal. 
624;  People  v.  Phelan,  123  Cal.  551. 

3  People  V.  Sears,  119  Cal.  267;  People  v.  Hoy  Yen,  34  Cal. 
176. 

4  People  V.  Chin    Hane,    108   Cal.    597. 

5  People  V.  Ah  Ton,  53  Cal.  741. 
0  People  V.  Marseiler,  70  Cal.  98. 

^  People  v.  Daniels,   70  Cal.   521;    People  v.   Ketchum,   73 

Cal.  638. 
«  People  V.  Wallace,  89  Cal.  158. 
«  People  V.  Collins,  75  Cal.  411. 


APPEAL.  477 

without  objection/*'  Where  no  objection  is  made  to  the 
evidence  it  is  within  the  discretion  of  the  court  afterwards 
to  strike  it  out."  But  this  rule  does  not  apply  to  answers 
which  are  not  responsive  to  the  question.  They  must  be 
stricken  out  on  motion  whether  objected  to  or  not.^^  The 
court  may  reject  evidence  on  its  own  motion  if  improper/^^ 
or  where  the  answer  could  not  have  been  anticipated  by 
objection.^^  But  usually  the  motion  to  strike  out  must  be 
preceded  by  objection  to  its  admission."  Irrelevant  state- 
ments by  a  witness  may  be  stricken  out.  The  remedy  is  not 
by  cross-examination.^^ 

10  People  V.  Long,  43  Cal.  444;  People  v.  Kolfe,  61  CaL 
542;  People  v.  Salorse,  62  Cal.  145;  People  v.  bamario, 
84  Cal.  484;    People  v.  Nelson,  85  Cal.  426. 

11  People  V.  Wallace,  89  Cal.  159. 

12  People  V.  Dixon,  94  Cal.  255;  In  re  Wax,  106  Cal.  347. 
12a  People  V.  Wallace,    89    Cal.    158;    People   v.   Turcott,    66 

Cal.  126;    Spottiswood  v.  Weir,  80  Cal.  451. 

13  People  V.  Williams,  127  Cal.  212. 

14  People  V.  Rolfe,  61  Cal.  541;  People  v.  Nelson,  85  Cal. 
426;  Estate  of  Wax,  106  Cal.  347;  People  v.  Samario, 
84  Cal.  485. 

15  People  V.  French,  95  Cal.  371. 


CHAPTER  LXV. 


HABEAS  CORPUS. 


OFFICE  OF  THE  WRIT. 

A  writ  of  habeas  corpus  will  not  be  granted  to  a  person 
who  is  not  actually  imprisoned.  If  he  is  released  on  bail 
he  is  not  restrained  of  his  liberty  and  the  writ  will  not  lie.* 
It  is  a  remedy  for  unlawful  imprisonment,  but  not  imprison- 
ment unlawful  because  of  erroneous  process.^  Its  func- 
tions extend  only  to  an  inquiry  into  the  jurisdiction  and 
the  validity  of  the  process  upon  its  face.^  It  may  extend  to 
the  question  whether  the  complaint  charges  an  offense 
known  to  the  law,  since  this  objection  goes  to  the  juris- 
diction,* or  as  to  whether  the  imprisonment  is  authorized 
by  the  law  under  which  the  prisoner  was  sentenced.* '  If 
the  acts  of  which  the  defendant  was  convicted  do  not  con- 
stitute a  crime,  the  conviction  is  void.®  The  judgment  will 
not  be  reviewed  when  the  court  acts  within  its  jurisdiction.'^ 

1  Ex  parte  Jones,  41  Cal.  209. 

2  Ex  parte  McCullough,  35  Cal.  97. 

3  Ex  parte  McLaughlin,  41  Cal.  211;  Ex  parte  Hartman, 
44  Cal.  35;  Ex  parte  Granice,  51  Cal.  376;  Ex  parte 
Miller,  82  Cal.  455;  Ex  parte  Cohn,  55  Cal.  196;  Ex  parte 
Long,  114  Cal.  159;  Ex  parte  Sternes,  77  Cal.  156. 

4  Ex  parte  Williams,  121  Cal.  330;  Ex  par.e  Maier,  103 
Cal.  476. 

s  Ex  parte  Sylvester,  81  Cal.  199. 

6  Ex  parte  Kearney,  55  Cal.  212;  Ex  parte  Maguire,  57 
Cal.  609;  Ex  parte  Hollis,  59  Cal.  407;  Ex  parte  Foley, 
62  Cal.  509;  In  re  Kowalsky,  73  Cal.  122;  Ex  parte  Hen- 
shaw,  73  Cal.  508;  Ex  parte  Mirande,  u  Cal.  371;  Ex 
parte  McNulty,  77  Cal.  166;  Ex  parte  Ah  Men,  77  Cal. 
201;  Ex  parte  Acock,  84  Cal.  54;  Ex  parte  Noble,  96 
Cal.  364;  Ex  parte  Maier,  103  Cal.  479;  In  re  Corryell, 
22  Cal.  178. 

7  Ex  parte  Perkins,  18  Cal.  60. 


HABEAS  CORPUS.  479 

The  inquiry  is  only  to  the  jurisdiction  of  the  court,  and 
will  not  reach  mere  errors  or  irregularities  not  touching  the 
jurisdiction.*  It  was  not  framed  to  retry  issues  of  fact, 
or  to  review  the  proceedings  of  a  legal  trial."  Hence, 
mere  errors  and  irregularities  cannot  be  reviewed.^"  It 
does  not  lie  for  any  defective  statement  of  the  offense,^^ 
to  review  the  sufficiency  of  the  evidence  to  sustain  the 
conviction,^^  nor  for  a  failure  to  state  an  offense  if  the 
complaint  is  not  made  a  part  of  the  record. ^^  A  prima 
facie  case  is  all  that  is  necessary  to  show  in  order  to 
defeat  the  discharge  of  the  prisoner.^*  The  judgment  is 
not  void  and  the  imprisonment  will  not  be  inquired  into 
by  the  writ,  if  it  appears  from  the  judgment  that  the 
court  had  jurisdiction  and  the  defendant  was  convicted. ^'^ 
An  illegality  which  will  be  reviewed  must  be  such  an 
illegality  as  is  contrary  to  the  principles  of  law  as  dis- 
tinguished from  rules  of  procedure.^*'  Thus  findings  of 
fact  passed  on  by  the  lower  court  cannot  be  reviewed,^^ 

8  Ex  parte  Ah  Men,  77  Cal.  198;   Ex  parte  Fil  Ki,  79  Cal. 
584. 
,  9  EIx  parte  Bird,   19   Cal.   130;    Ex  parte  Cottrell,   59   Cal. 

422;    Ex  parte  Lehmkuhl,   72    Cal.   54;    Ex  parte  Long, 
114  Cal.  161. 

10  Ex  parte  Hartman,  44  Cal.  32;  Ex  parte  Cohn,  55  Cal. 
197;  Ex  parte  McLaughlin,  41  Cal.  211;  Ex  parte  Turner, 
75  Cal.  228;  Ex  parte  Stephen,  114  Cal.  283;  Ex  parte 
Ah  Sam,  83  Cal.  620;  Ex  parte  Sternes,  77  Cal.  156;  Ex 
parte  Long,  114  Cal.  161;  Ex  parte  Lehmkuhl,  72  Cal. 
53;  Ex  parte  Mirande,  73  Cal.  365;  Ex  parte  Smith,  89 
Cal.  79;  Ex  parte  Raye,  63  Cal.  492;  Ex  parte  Young 
Ah  Gow,  73  Cal.  442;  Ex  parte  Kelly,  120  Cal.  273;  Ex 
parte  Max,  44  Cal.  579;  Ex  parte  Bowen,  -lo  Cal.  113; 
Ex  parte  Noble,  96  Cal.  362;  Ex  parte  Walpole,  85  Cal. 
362. 

11  Ex  parte  Williams,  :21  Cal.  329;  Ex  parte  McNulty, 
77  Cal.  164. 

12  Ex  parte  Williams,  87  Cal.  78. 

13  Ex  parte  Rosenheim,  83   Cal.  388. 

14  Ex  parte  Palmer,  86  Cal.   631. 

15  Ex  parte  Gibson,  31  Cal.  620;  Ex  parte  Raye,  63  Cal. 
492. 

16  Ex  parte  Gibson,  31  Cal.  620;  Ex  parte  McCullough,  35 
Cal.  101. 

17  Ex  parte  Clark,  110  Cal.  405;  Ex  parte  Cottrell,  59  Cal. 
420;  Ex  parte  Sternes,  77  Cal.  163;  Ex  parte  Noble,  96 
Cal.  364. 


480  CBIMINAI^  IuA.W  AND  PROCEDURE. 

nor  defect  in  the  indictment.'^  nor  irregularity  in  the  com- 
mitment,'''' nor  the  denial  of  a  jury  trial  in  cases  where  a 
jury  may  be  waived^"  as  in  a  trial  in  a  justice  court  for 
misdemeanor.-'  But  it  will  review  the  denial  of  a  jury 
trial  in  cases  of  felonies.-'-  It  will  lie  to  relieve  a  party 
convicted  under  a  void  law,-^  but  where  the  complaint 
states  a  violation  of  two  laws  and  the  penalty  is  not  in 
excess  of  either,  the  prisoner  will  not  be  discharged  where 
one  of  the  acts  is  void."  If  the  sentence  is  illegal  in  part, 
the  writ  will  not  lie  to  discharge  the  prisoner  before  the 
legal  part  is  satisfied.^"  but  punishment  in  excess  of  that 
allowed  by  law  is  void  and  the  writ  will  lie.^'^  It  will  also 
authorize  the  release  of  a  person  arrested  upon  a  present- 
ment by  a  grand  jury  for  a  misdemeanor.-^  Judgments  on 
contempt  are  reviewable  on  habeas  corpus,-®  but  not  where 
the  question  is  whether  the  judgment  was  warranted  by  the 
evidence.  Disobedience  of  an  order  which  the  court  had 
no  jurisdiction  to  make  it  not  contempt  and  habeas  corpus 
will  lie  to  release  the  prisoner.^"  If  the  judgment  shows 
jurisdiction  on  its  face,  the  writ  will  not  lie  to  inquire  into 
the  punishment  any  further  than  to  see  whether  it  shows' 
what  punishment  the  prisoner  is  to  suffer.^"  The  action 
of  the  court  in  recalling  a  remittitur  cannot  be  collaterally 
attacked  by  habeas  corpus.^'  It  will  lie  to  release  a  witness 
who  has  been  unreasonably  detained.  And  where  a  peti- 
tioner is   held   for  extradition,   the  court   will   inquire  by 

18  In  re  Kowalsky,  73  Cal.  120. 

10  Ex  parte  Granice,  51  Cal.  375;  Ex  parte  Keil,  85  Cal. 
309. 

20  In  re  Fife.  llOi  Cal.  8. 

21  Ex  parte  Miller,  82  Cal.  454. 

22  Ex  parte  Wong  You   Ting,  106  Cal.  296. 
2.t  Ex  parte  Keeney,  84  Cal.  304.     . 

24  Ex  parte  Taylor,  87  Cal.  91. 

25  Ex  parte  Mitchell,  70  Cal.   1. 

26  Ex  parte  Bulger,  60  Cal.  438. 

27  In  re  Grcsbois,  109  Cal.  445. 

28  Ex  parte  Rowe,  7  Cal.  181;  Ware  v.  Robinson,  9  Cal. 
Ill;  People  v.  O'Neil,  47  Cal.  110;  Ex  parte  Hollis,  59 
Cal.  408;  Huerstal  v.  Muir,  62  Cal.  481. 

20  Ex  parte  Tinkum,  54  Cal.  201. 
3"  Ex  parte  Murray,  43  Cal.  455. 
31  Ex  parte  Gallagher,  101  Cal.  113. 


HABEAS  CORPUS.  4^1 

habeas  corpus  whether  the  complaint  states  an  offense 
under  the  laws  of  the  demanding  state.^^  The  court  will  not 
discharge  the  petitioner  when  it  appears  he  is  guilty  of  an 
offense  until  the  time  is  allowed  for  a  legal  arrest  where 
he  is  held  under  a  void  commitment.^^  The  writ  will 
not  justify  a  discharge  for  a  defective  commitment.**  A 
defective  commitment  does  not  authorize  a  discharge,  if  it 
appears  that  the  order  endorsed  on  the  depositions  is  cor- 
rect, and  no  allegations  by  way  of  traverse  returned  that  a 
sufficient  order  was  not  so  endorsed.^"  A  certified  copy 
of  the  judgment,  properly  entered,  is  sufficient  authority  to 
detain  the  prisoner  and  the  court  will  give  a  reasonable  time 
to  obtain  a  certified  copy  thereof  before  ordering  his  dis- 
charge, if  it  appears  that  it  can  be  procured.*"  Where  the 
defendant  is  convicted  of  a  misdemeanor  and  imprisoned  in 
the  state  prison  he  will  be  released  on  habeas  corpus." 
All  the  presumptions  are  in  favor  of  the  regularity  of  the 
judgment  under  which  the  petitioner  is  held.*^  The  judg- 
ment is  conclusive  and  the  sufficiency  of  the  evidence  cannot 
be  inquired  into;*®  so  are  the  recitals  of  the  jurisdictional 
facts. *'^  The  burden  is  on  the  petitioner  to  show  the  re- 
straint apparently  legal  is  not  so,  and  allegations  are  taken 
most  strongly  against  the  pleader.*^  But  where  no  legal 
right  to  detain  the  petitioner  is  claimed,  habeas  'corpus  will 
discharge  him.*^     No  appeal  will  lie  from  a  judgment  on 

32  Ex  parte  Spears,   88  Cal.   640. 

33  Ex  parte  Crandall,  2  Cal.  144. 

34  Ex  parte  Bull,  42  Cal.  196;  EX  parte  Kell,  85  Cal.  310. 

35  Ex  parte  Estrado,  88  Cal.  316. 

36  In  matter  of  Ring,  28  Cal.  248;  Ex  parte  Gibson,  31  Cal. 
623;  Matter  of  Brown,  32  Cal.  49;  Ex  parte  Ahern,  103 
Cal.  444. 

37  Ex  parte  Ah  Cha,  40  Cal.  426;  Ex  parte  Turner,  75  Cal. 
228. 

38  Ex  parte  Morrison,  88  Cal.  113. 

39  Ex  parte  Acock,   84  Cal.   50. 

40  Ex  parte  Sternes,  77  Cal.  156;  Ex  parte  Stephen,  114 
Cal.  280;  Ex  parte  Ah  Men,  77  Cal.  203;  Latham  v.  Blake, 
77  Cal.  649;  De  Pedrorena  v.  Superior  Court,  80  Cal.  146; 
White  V.  Superior  Court,  110  Cal.  65. 

41  In  re  Clark,  125  Cal.  389. 

42  Ex  parte  The  Queen  of  the  Bay,  1  Cal.  157. 


CRIMES--31 


482  CRIMINAL  LAW  AND  PROCEDURB. 

habeas  corpus,*^  neither  is  it  a  bar  to  a  further  proceeding 
^pon  another  appHcation  before  another  tribunal,  for  the 
'doctrine  of  res  ad  judicata  does  not  apply.**  The  decision 
•^^of  the  court  refusing  to  discharge  a  prisoner  is  not  a  bar 
to  another  application  before  another  judge  or  court.  The 
-^prisoner  has  the  right  to  exhaust  the  whole  judicial  power 
of  the  state.***  Where  the  commitment  is  to  the  wrong 
officer,  the  petitioner  will  be  remanded  to  the  proper  officer, 
but  not  discharged.  An  appeal  from  habeas  corpus  pro- 
ceedings in  the  federal  courts  upon  a  conviction  in  the 
state  court  operates  as  a  stay  in  the  state  court.**  The 
writ  may  be  issued  by  the  Supreme  Court  and  returnable 
before  a  Superior  Court  which  has  the  same  authority  un- 
der it  as  the  Supreme  Court  has.*''  The  state  court,  how- 
ever, has  no  authority  to  release  from  the  state  prison  a 
prisoner  held  under  federal  process.*^  The  writ  will 
not  issue  out  of  the  county  except  for  good  cause  shown; 
such  as  absence,  disability,  or  refusal  of  the  local  judge 
to  act.*" 

HABEAS    CORPUS    TO    ADMIT    TO    BAIL. 

Application  for  habeas  corpus  to  admit  to  bail  will  be 
denied  where  the  evidence  shows  facts  to  warrant  a  verdict 
of  murder  an  the  first  degree.  Where  new  proofs  are 
desired  to  be  added,  an  application  should  be  made  to  the 
Superior  Court."**  On  habeas  corpus  to  reduce  bail  after  an 
indictment,  the  guilt  of  the  defendant  is  assumed,"^  and  to 
authorize  an  interference  by  the  court  upon  habeas  corpus, 
the  bail  demanded  must  be  per  se  excessive."^ 

*3  People  V.  Schuster,  40  Cal.  627. 

*4  In  re  Perkins,  2  Cal,  424. 

46  In  matter  of  Ring,  28  Cal.  248. 

46  Ex  parte  Edgar,  119  Cal.  123;  In  re  Ebanks,  84  Fed.  Rep. 
313. 

47  Ex  parte  Booker,  51  Cal.  317. 

48  Ex  parte  Le  Bur,  49  Cal.  159. 
40  Ex  parte  Ellis,  11  Cal.  223. 
80  Ex  parte  Curtis,  92  Cal.  188. 

51  Ex  parte  Duncan.  53  Cal.  41#;  Ex  parte  Duncan,  54  Cal. 

78. 
82  In  re  Williams,  82  Cal.  183. 


HABEAS  CORPUS.  483 

COMMITMENT    WITHOUT   PROBABLE   CAUSE. 

On  application  to  be  discharged  upon  the  ground  that 
the  commitment  of  the  magistrate  was  without  probable 
cause,  the  petition  must  be  verified  and  must  set  out  all 
the  evidence  in  such  form  that  perjury  may  be  assigned' 
thereon."^  The  facts  stated  must  show  an  illegal  impris- 
onment."* But  where  the  commitment  was  without  prob- 
able cause,  the  prisoner  will  be  discharged  on  habeas  cor- 
pus." The  probable  cause  of  the  commitment  may  be  in- 
quired into  by  the  writ.  The  district  attorney  in  filing  the 
information  acts  only  in  a  ministerial  capacity."*®  And  for 
the  purpose  of  determining  whether  probable  cause  appears 
for  commitment,  the  question  of  whether  depositions  taken 
before  the  magistrate  are  sufficient,  may  be  reviewed,  and 
the  depositions  may  be  examined  for  that  purpose." 

03  Ex  parte  Buckley,   105  Cal.  123;   Ex  parte  Walpole,  84 

Cal.  584. 
84  Ex  parte  Walpole,  84  Cal.  584. 
66  In  re  Howell,  114  Cal.  250. 
66  Ex  parte  Sternes,   82   Cal.   245;    Ex  parte   Nicholas,   91 

Cal.  646. 
6T  People  V.  Smith,  1  Cal.  9;  Ex  parte  Cottrell,  53  Cal.  422; 

Ex  parte  Sternes,  82  Cal.  247. 


CHAPTER  LXVI. 


KXTRADIXION. 


FUGITIVES    FROM    JUSTICE. 

The  obligation  of  the  federal  statute  that  a  fugitive  from 
justice  from  one  state  shall,  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered  up 
to  be  removed  to  the  state  having  jurisdiction  of  the  crime, 
is  an  absolute  right  and  duty  and  no  longer  a  matter  of 
mere  comity  between  the  states.^  But  the  provision  for  the 
arrest  and  detention  of  such  fugitives  before  the  requisition 
has  arrived,  is  upon  principles  of  comity  Only.^  Where 
the  surrender  is  for  a  crime  not  specified  in  a  treaty,  it 
will  be  presumed  it  was  within  the  exercise  of  sovereign 
discretion  as  an  act  of  comity.^  The  power  to  issue  the 
warrant  for  the  apprehension  of  a  fugitive  from  justice  de- 
pends upon  the  following  facts :  ( i )  That  the  person  is 
charged  in  some  state  or  territory  of  the  United  States  with 
any  treason,  felony  or  other  crime ;  (2)  that  he  has  fled  from 
Justice;  (3)  that  he  is  found  in  this  state;  and  (4)  that 
the  executive  authority  of  the  state  or  territory  from  which 
he  fled,  has  demanded  his  delivery,  to  be  removed  to  the 
territory  having  jurisdiction  of  the  crime.*  Any  illegal 
means  used  to  effect  this  purpose  does  not  impair  the  juris- 
diction of  the  court  to  try  for  an  offense  committed  within 
its  jurisdiction,^  but  the  trial  should  be  for  the  crime  on 

1  In  Matter  of  Romaine,  23  Cal.  591. 

2  Ex  parte  Rosenblat,  51  Cal.  285. 

3  Ex  parte  Foss,  102  Cal.  347. 

*  In  matter  of  Romaine,  23  Cal.  591. 
0  People  V.  Pratt,  78  Cal,  345. 


EXTRADITION.  485 

which  the  extradition  is  based  only.®  When,  however, 
the  indictment  is  set  aside  another  may  be  filed  for  the 
same  ofifense.'^  An  affidavit  is  not  sufficient  if  it  is  made 
merely  on  information  and  belief.^  The  recitals  in  the 
warrant  of  arrest  will  be  taken  as  true,  on  habeas  corpus, 
if  not  disputed.®  The  cause  of  imprisonment  may  be  in- 
quired into  by  habeas  corpus  and  a  refusal  to  deliver,  as 
commanded  in  the  writ,  is  a  contempt  of  court. ^"  The 
governor  of  this  state  has  no  power  to  surrender  a  fugitive 
unless  judicial  proceedings  have  been  commenced  against 
the  prisoner  in  the  state  where  the  crime  was  committed ; 
he  cannot  be  even  arrested  without  such  proceedings  hav- 
ing been  begun, ^^  but  a  fugitive  from  justice,  who  has  fled 
from  another  state,  before  a  demand  for  his  surrender  by 
the  executive  authority  of  the  state  from  which  he  fled, 
may  be  arrested  and-  detained  for  a  reasonable  time  to 
aflFord  an  opportunity  for  such  demand.^^  The  proceedings 
under  the  statute  in  relation  to  the  arrest  and  detention, 
are  required  to  be  similar  to  those  against  the  person 
charged  with  crime  committed  in  this  state,  and  the  war- 
rant must  specify  the  offense  alleged  to  have  been  com- 
mitted by  the  accused.^^ 

6  People  V.  Gray,  66  Cal.  271. 

7  Ex  parte  Foss,  102  Cal.  347. 

8  Ex  parte  Spears,  88  Cal.  640. 
»  Ex  parte  Lewis,  79  Cal.  96. 

10  In  re  Robb,  64  Cal.  431;  Ex  parte  Sternes,  77  Cal.  163. 

11  Ex  parte  White,  49  Cal.  433. 

12  Ex  parte  Cubreth,  49  Cal.  436;   Ex  parte  White,  49  Cal. 
433. 

13  Ex  parte  Cubreth;   49   Cal.   436. 


THE 


PENAL  CODE 


OF 


CALIFORNIA 


ANNOUNCEIVIKN'r. 


In  the  publication  of  the  Penal  Code  we  have  undoubt- 
edly changed  the  law  of  this  state — not  the  law  as  enacted 
by  the  legislature,  but  as  furnished  to  the  public  by  law 
book  publishers.  It  was  not  originally  intended  to  insert 
the  Penal  Code  in  this  volume,  but  a  number  of  lawyers 
who  knew  we  were  printing  a  work  on  criminal  law  in 
California  insisted  that  it  would  not  be  complete  without 
the  code,  especially  in  view  of  the  dilapidated  condition  in 
which  the  Supreme  Court  in  its  decision  on  the  Commission- 
ers' amendments  to  the  codes  had  put  all  existing  publica- 
tions of  that  code.  Hence  as  the  work  was  supposed  to  be 
purely  mechanical,  we  turned  over  to  the  compositors  a 
pony  edition  of  the  Penal  Code  issued  in  1897  by  a  San 
Francisco  publishing  house  with  our  own  subsequent  slips 
for  copy,  and  then  started  to  read  the  proofs  by  Pomeroy's 
Codes  of  1901 ;  when,  behold,  they  did  not  agree!  Then 
we  turned  to  the  original  laws  and  found  they  were  both 
incorrect.  j\Iany  of  the  errors  are  of  minor  importance 
and  perhaps  immaterial.  But  punctuation  seems  to  have 
been  at  the  mercy  of  the  whims  of  the  printer  and  proof- 
reader without  any  regard  to  the  law  as  originally  issued 
•  by  the  state.  For  instance,  wdiat  was  originally  "  keybit," 
in  section  466  had  become  "  key,  bit ;  "  while  in  section  369 
the  words  "  railroad,  car  "  have  gone  the  other  w^ay,  and 
now  in  all  the  publications  in  general  use  appear  as  "  rail- 
road car."  Amongst  the  material  changes  in  the  reading 
may  be  mentioned  section  627,  by  which  the  legislature  of 
1897  (Statutes,  p.  92)  made  it  a  misdemeanor  for  any  com- 
mon carrier  to  transport  certain  game  "  except  for  purposes 
of   propagation,"   but    none   of   the   aforesaid   publications 


contain  the  exception,  although  they  all  publish  the  section 
as  law.  We  have  omitted  it  because  the  statutes  of  1901 
(p.  821)  say  it  "is  hereby  amended  to  read  as  follows:" 
In  some  of  the  publications  referred  to,  "  person  "  has  been 
changed  to  "  woman,"  (sec.  275)  ;  "  offense  "  to  "  defense," 
(sec.  952)  ;  "  broker  "  to  "  banker,"  (sec.  536)  ;  "  or  quiet  " 
is  omitted,  (sec.  415)  ;  "  made  "  inserted,  (sec.  536)  ;  while 
"  of,"  "  in,"  "  a  "  and  "  the,"  and  small  words  of  that  kind 
■seem  to  have  been  irrelevant,  incompetent  and  immaterial 
in  the  eyes  of  the  aforesaid  printers  and  proof  readers.  And 
when  the  grammatical  construction  seemed  faulty  there  was 
no  hesitation  in  fixing  it. 

Suffice  it  to  say  that  we  went  to  the  Penal  Code  issued 
from  the  state  printing  office  in  1872  and  published  under 
an  authority  from  the  legislature,  (Statutes  1872-3,  p.  481) 
and  under  the  supervision  of  the  Code  Commission,  and 
certified  by  the  members  of  the  commission  to  be  correct, 
and  then  took  all  the  amendments  of  the  legislature  since 
as  published  by  the  state  printing  office,  and  read  the  afore- 
said proofs.  We  laid  aside  all  "  style  "  of  a  printing  office 
and  followed  the  copy  in  all  respects  except  in  capitaliza- 
tion, which  we  opine  can  make  no  difference  in  the  law. 
We  have  followed  the  typographical  errors  of  no  one  else, 
and  all  that  are  herein  are  our  own.  In  some  cases  we  have 
italicized  words  to  show  that  we  followed  the  copy,  and  if  a 
typographical  error  is  not  ours. 

The  citations  are  those  taken  from,  the  California  Code 
Citations  issued  by  us. 

A  new  and  complete  index  has  been  prepared  by  Mr. 
Fairall,  and  knowing  the  care,  labor  and  ability  bestowed 
upon  the  portion  of  this  book  preceding  this  explanation,  we 
confidently  submit  this  book  to  the  bench,  bar  and  people  of 
the  state  of  California  with  no  fear  or  trepidation. 

THE  PUBLISHERS. 

Los  Angeles.,  March  15,  1902. 


AN  ACX  TO  KSXABLISH  A  PENAI^ 
C013E. 

[Approved  February  14,  1872.] 


The  People  of  the  State   of  California,   represented   in   Senate 
and  Assembly,  do  enact  as  follows: 

TITLE  OF  THE  ACT. 
1.    This  act  shall  be  known  as  the  Penal  Code  of  California, 
and  is  divided  into  three  parts,  as  follows: 

1.  Of  Crimes  and  Punishments. 
II.     Of  Criminal  Procedure. 

III.     Of  the  State  Prison  and  County  Jails. 

PRELIMINARY  PROVISIONS. 

Sec.    2.  When  this  act  takes  effect. 

3.  Not  retroactive. 

4.  ConstructloH   of  the  Penal   Code. 

5.  Provisions  similar  to  existing  laws,  how  construed. 

6.  Effect  of  code  upon  past  offenses. 

7.  Certain  terms  defined  In  the  senses  In  which  they  are  used  In 

this  code. 

8.  What  Intent  to  defraud  is  sufficient. 

9.  Civil  remedies  preserved. 

10.  Proceedings  to  Impeach  or  remove  officers  and  others  preserved. 

11.  Authority  of  courts-martial  preserved.  Courts  of  justice  to  punish 

for  contempts. 

12.  Of  sections  declaring  crimes  punishable.   Duty  of  court. 

13.  Punishments,   how  determined. 

14.  Witness'  testimony  may  be  read  against  him  on  prosecution  for 

perjury. 

15.  "Crime"  and  "public  offense"  defined. 

16.  Crimes,    how   divided. 

17.  Felony    and    misdemeanor   defined. 

18.  Punishment   of  felony,   when   not  otherwise  prescribed. 

19.  Punishment    of    misdemeano  r,    when   not   otherwise   prescribed. 

20.  To  constitute  crime  there  must  be  unity  of  act  and  Intent. 

21.  Intent,  how   manifested,   and   who  considered  of  sound  mind. 

22.  Drunkenness  no  excuse    for  crime.    When  it  may  be  considered. 

23.  Certain   statutes  specified  as  continuing  in   force. 

24.  This  act,   how  cited. 

When  this  act  takes  effect. 

2.  This  code  takes  effect  at  twelve  o'clock,  noon,  on  the  first 
day  of  January,  eighteen  hundred  and  seventy-three. 

Not  retroactive. 

3.  No  part  of  it  is  retroactive,  unless  expressly  so  declared. 

106  Cal.  680. 

Construction  of  the  Penal  Code. 

4.  The  rule  of  the  common  law,  that  penal  statutes  are  to  b« 
strictly  construed,  has  no  application  to  this  code.  All  its 
provisions  are  to  be  construed  according  to  the  fair  import  of 
their  terms,  with  a  view  to  effect  its  objects  and  to  promote 
justice. 

46  Cal.  116;  49  Cal.  70;  82  Cal.  274;  88  Cal.  139; 
93  Cal.  584;  93  Cal.  631;  105  Cal.  558;  12?  Cal. 
316. 


6-7  PENAL  CODE.  492 

Provisions  similar  to  existing  laws,  how  construed. 

5.  The  provisions  of  this  code,  so  far  as  they  are  substan- 
tially the  same  as  existing  statutes,  must  be  construed  as  con- 
tinuations thereof,  and  not  as  new  enactments. 

Effect  of  Code  upon  past  offenses. 

6.  No  act  or  omission,  commenced  after  twelve  o'clock  noon 
of  the  day  on  which  this  code  takes  effect  as  a  law.  Is  erioiinal 
or  punishable,  except  as  prescribed  or  authorized  by  this  code, 
or  by  some  of  the  statutes  which  it  specifies  as  continuing  in 
force  and  as  not  affected  by  its  provisions,  or  by  some  ordinance, 
municipal,  county,  or  township  regulation,  passed  or  adopted, 
under  such  statutes  and  in  force  when  this  code  takes  effect. 
Any  act  or  omission  commenced  prior  to  that  time  may  be 
inquired  of,  prosecuted,  and  punished  in  the  -same  manner  as  if 
this  code  had  not  been  passed. 

46   Cal.    116;    65   Cal.    229. 

Certain  terms  defined  in  the  senses  in  which  they  are  used  in 
this  Code. 

7.  Words  used  in  this  code  in  the  present  tense  include  the 
future  as  well  as  the  present;  words  used  in  the  masculine 
gender  include  the  feminine  and  neuter;  the  singular  number 
includes  the  plural,  and  the  plural  the  singular;  the  word 
"person"  includes  a  corporation  as  well  as  a  natural  person; 
writing  includes  printing;  oath  includes  affirmation  or  declar- 
ation; and  every  mode  of  oral  statement  under  oath  or  affir- 
mation is  embraced  by  the  term  "testily,"  and  every  written 
one  in  the  term  "depose";  signature  or  subscription  includes 
mark,  when  the  person  can  [not]  write,  his  name  being  written 
near  it,  and  witnessed  by  a  person  who  writes  his  own  name 
as  a  witness.  The  following  words,  also,  have  in  this  code  the 
signification  attached  to  them  in  this  section,  unless  otherwise 
apparent  from  the  context: 

One — The  word  "wilfully,"  when  applied  to  the  intent  with 
which  an  act  is  done  or  omitted,  implies  simply  a  purpose  or 
willingness  to  commit  the  act,  or  make  the  omission  referred 
to.  It  does  not  require  any  intent  to  violate  law,  or  to  injure 
another,  or  to  acquire  any  advanta^. 

Two — The  words  "neglect,"  "negligence,"  "negligent,"  and 
"negligently,"  import  a  want  of  such  attention  to  the  nature  or 
probable  consequences  of  the  act  or  omission  as  a  prudent  man 
ordinarily  bestows  in  acting  in  his  own  concerns. 

Three — The  word  "corruptly"  imports  a  wrongful  design  to 
acquire  or  cause  some  pecuniary  or  other  advantage  to  the  person 
guilty  of  the  act  or  omission  referred  to,  or  to  some  other 
person. 

Four — The  words  "malice"  and  maliciously"  import  a  wish 
to  vex,  annoy,  or  injure  another  person,  or  an  intent  to  do  a 
wrongful  act,  established  either  by  proof  or  presumption  of 
law. 

Five — The  word  "knowingly"  imports  only  a  knowledge  that 
the  facts  exist  which  bring  the  act  or  omission  within  the  pro- 
visions of  this  code.  It  does  not  require  any  knowledge  of  the 
unlawfulness  of  such  act  or  omission. 

Six — The  word  "bribe"  signifies  anything  of  value  or  advan- 
tage, present  or  prospective,  or  any  promise  or  undertaking  to 
give  any,  asked,  given,  or  accepted,  with  a  corrupt  intent  to 


493  PRELIMINARY  PROVISIONS.  8-^ 

influence,  unlawfully,  the  person  to  whom  it  is  given,  in  his- 
action,  vote,  or  opinion,  in  any  public  or  oflicial  capacity. 

Seven — The  word  "vessel,"  when  used  with  reference  to 
shipping,  includes  ships  of  all  kinds,  steamboats,  canals,  boats, 
barges,  and  every  structure  adapted  to  be  navigated  from  place 
tm  place  for  the  transportation  of  merchandise  or  persons. 

Eight — The  word  "peace  officer"  signifies  any  one  of  the 
officers  mentioned  in  section  eight  hundred  and  seventeen  of 
this  code. 

Nine — The  word  "magistrate"  signifies  any  one  of  the  offi- 
cers mentioned  in  section  eight  hundred  and  eight  of  this  code. 

Ten — The  word  "property"  includes  both  real  and  personal 
property. 

Eleven — The  words  "real  property"  are  coextensive  with 
lands,   tenements,   and   hereditaments. 

Twelve — The  words  "personal  property"  include  money, 
goods,  chattels,  things  in  action,  and  evidences  of  debt. 

Thirteen — The  word  "month"  means  a  calendar  month, 
unless   otherwise  expressed. 

Fourteen — The  word  "will"  includes  codicils. 

Fifteen — The  word  "writ"  signifies  an  order  or  precept  in 
writing,  issued  in  the  name  of  the  people,  or  of  a  court  or 
judicial  officer,  and  the  word  "process"  a  writ  or  summons 
issued  in  the  course  of  judicial  proceedings. 

Sixteen — Words  and  phrases  must  be  construed  according 
tb  the  context  and  the  approved  usage  of  the  language;  but 
technical  words  and  phrases,  and  such  others  as  may  have 
acquired  a  peculiar  and  appropriate  meaning  in  law,  must  be 
construed  according  to  such  peculiar  and  appropriate  meaning. 

Seventeen — Words  giving  a  joint  authority  to  three  or  more 
public  officers  or  other  persons,  are  construed  as  giving  such 
authority  to  a  majority  of  them,  unless  it  be  otherwise  expressed 
in  the  act  giving  the  authority. 

Eighteen — When  the  seal  of  a  court  or  public  officer  is 
required  by  law,  to  be  affixed  to  any  paper,  the  word  "seal" 
includes  an  impression  of  such  seal  upon  the  paper  alone,  or 
upon  any  substance  attached  to  the  paper  capable  of  receiving 
a  visible  impression.  The  seal  of  a  private  person  may  be  made 
in  like  manner,  or  by  the  scroll  of  a  pen,  or  by  writing  the  word 
"seal"  against  his  name. 

Nineteen — The  word  "state,"  when  applied  to  the  different 
parts  of  the  United  States,  includes  the  District  of  Columbia 
and  the  territories,  and  the  words  "United  States"  may  include 
the  district  and  territories.  [Approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  419.     In  effect  July  1,  1874.] 

58  Cal.  269;  67  Cal.  422;  68  Cal.  363;  68  Cal.  438; 
70  Cal.  .533;  72  Cal.  616;  73  Cal.  631;  82  Cal. 
468;  93  Cal.  566;  96  Cal.  177;  105  Cal.  639;  110 
Cal.  371;  120  Cal.  13o;  120  Cal.  202;  127  Cal. 
319;  129  Cal.  551;  130  Cal.  577. 

What  intent  to  defraud  is  sufficient. 

8.  Whenever,  by  any  of  the  provisions  of  this  code,  an  intent 
to  defraud  is  required  in  order  to  constitute  any  offense,  it  is 
sufl[icient  if  an  intent  appears  to  defraud  any  person,  association, 
or  body  politic  or  corporate,  whatever. 

Civil   remedies  preserved. 

9.  The  omission  to  specify  or  aflSrm  in  this  code  any  liability 
to    damages,   penalty,   forfeiture,   or   other   remedy   imposed   by 


10-15  PENAL  CODE.  494 

law  and  allowed  to  be  recovered  or  enforced  in  any  civil  action  or 
proceeding,  for  any  act  or  omission  declared  punishable  herein, 
does  not  affect  any  right  to  recover  or  enforce  the  same. 

Proceedings  to  impeach  or  remove  officers  and  others  preserved. 
"lO.  The  omission  to  specify  or  affirm  in  this  code  any  ground 
of  forfeiture  of  a  public  office,  or  other  trust  or  special  authority 
conferred  by  law,  or  any  power  conferred  by  law  to  impeach, 
remove,  depose,  or  suspend  any  public  officer  or  other  person 
holding  any  trust,  appointment,  or  other  special  authority  con- 
ferred by  law,  does  not  affect  such  forfeiture  or  power,  or  any 
proceeding  authorized  by  law  to  carry  into  effect  such  impeach- 
ment, removal,  deposition,  or  suspension. 

Authority  of  courts-martial  preserved. 

11.  This  code  doef.  not  affect  any  power  conferred  by  law 
upon  any  courtmartial,  or  other  military  authority  or  officer, 
to  impose  or  inflict  punishment  upon  offenders;  nor  any  power 
conferred  by  law  upon  any  public  body,  tribunal,  or  officer,  to 
impose  or  inflict  punishment  for  a  contempt. 

94    Cal.    333. 

Of  sections  declaring  crimes  punishable.     Duty  of  court. 

12.  The  several  sections  of  this  code  which  declare  certain 
crimes  to  be  punishable  as  therein  mentioned  devolve  a  duty 
upon  the  court  authorized  to  pass  sentence,  to  determine  and 
impose  the  punishment  prescribed. 

93    Cal.    640;    110    Cal.    654. 

Punishments,  how  determined. 

13.  Whenever  in  this  code  the  punishment  for  a  crime  is  left 
undetermined  between  certain  limits,  the  punishment  to  be 
inflicted  in  a  particular  case  must  be  determined  by  the  court 
authorized  to  pass  sentence,  within  such  limits  as  may  be  pre- 
scribed by  this  code. 

Witness'  testimony   may    be    read    against    him    on    prosecution 
for  perjury. 

14.  The  various  sections  of  this  code  which  declare  that 
evidence  obtained  upon  the  examination  of  a  person  as  a  wit- 
ness cannot  be  received  against  him  in  any  criminal  proceeding, 
do  not  forbid  such  evidence  being  proved  against  such  person 
upon  any  proceedings  founded  upon  a  charge  of  perjury  com 
mitted  in  such  examination. 

"Crime"  and   "public  offense"   defined. 

15.  A  crime  or  public  offense  is  an  act  committed  or  omitted 
in  violation  of  a  law  forbidding  or  commanding  it,  and  to  which 
is  annexed,  upon  conviction,  either  of  the  following  punish- 
ments: 

1.  Death; 

2.  Imprisonment; 

3.  Fine; 

4.  Removal  from  office;   or, 

5.  Disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  in  this  state. 

90   Cal.    278;    93   Cal.    439;    110   Cal.    656;    US   Cal. 
460;    118   Cal.    482. 


496  PRELIMINARY  PROVISIONS.  16-28 

Crimes,  how  divided. 

16.  Crimes  are  divided  into: 

1.  Felonies;   and, 

2.  Misdemeanors. 

94    Cal.    574;    102    Cal.    428;    118    Cal.    460. 

Felony  and  misdemeanor  defined. 

17.  A  felony  is  a  crime  which  is  punishable  with  death  or 
by  imprisonment  in  the  state  prison.  Every  other  crime  is  a 
misdemeanor.  When  a  crime,  punishable  by  imprisonment  in 
the  state  prison,  is  also  punishable  by  fine  or  imprisonment  in  a 
county  jail,  in  the  discretion  of  the  court,  it  shall  be  deemed  a 
misdemeanor  for  all  purposes  after  a  judgment  imposing  a 
punishment  other  than  imprisonment  in  the  state  prison. 
[Amendments  approved  March  7,  1874;  Amendments  1873-4,  p. 
455.1 

49  Cal.  395;  53  Cal.  428;  69  Cal.  605;  7S  Cal 
306;    85   Cal.    87;   94   Cal.    574. 

Punlsliment  of  felony,  when  not  otherwise  prescribed. 

18.  Except  in  cases  where  a  different  punishment  is  pre- 
scribed by  this  code,  every  offense  declared  to  be  a  felony  is 
punishable  by  imprisonment  in  the  state  prison,  not  exceeding 
Ave  years. 

Punishment   of   misdemeanor  when    not  otherwise    prescribed. 

19.  Except  in  cases  where  a  different  punishment  is  pre- 
scribed by  this  code,  every  offense  declared  to  be  a  misdemeanor 
is  punishable  by  imprisonment  in  a  county  jail  not  exceeding 
six  months,  or  by  a  fine  not  exceeding  five  hundred  dollars,  or 
by  both. 

68  Cal  413;  85  Cal.  37;  85  Cal.  211;  102  Cal. 
429;    114   Cal.    282;    114   Cal.   371;    124   Cal.    152. 

To  constitute  crime  there  must  be  unity  of  act  and  intent. 

20.  In  every  crime  or  public  offense  there  must  exist  a  union, 
or  joint  operation  of  act  and  intent,  or  criminal  negligence. 

63  Cal.  168;  82  Cal.  520;  93  Cal.  566;  116  Cal  77; 
129   Cal.    551. 

Intent,  how  manifested,  and  who  considered  of  sound  mind. 

21.  The  intent  or  intention  is  manifested  by  the  circum- 
stances connected  with  the  offense,  and  the  souna  mind  and 
discretion  of  the  accused.  All  persons  are  of  sound  mind  who 
are  neither  idiots  nor  lunatics,  nor  affected  with  insanity. 

132    Cal.    329. 

Drunkenness  no  excuse  for  crime.     When  it  may  be  considered. 

22.  No  act  committed  by  a  person  while  in  a  state  of  volun- 
tary intoxication  is  less  criminal  by  reason  of  his  having  been 
in  such  condition.  But  whenever  the  actual  existence  of  any 
particular  purpose,  motive,  or  intent  is  a  necessary  element  to 
constitute  any  particular  species  or  degree  of  crime,  the  jury 
may  take  into  consideration  the  fact  that  the  accused  was  intox- 
icated at  the  time,  in  determining  the  purpose,  motive,  or  intent 
with  which  he  committed  the  act. 

65  Cal.  278;  93  Cal.  112;  93  Cal.  487;  95  Cal. 
428?  100  Cal.  390;  103  Cal.  575;  115  Cal.  577;  122 
Cal.  239;  123  Cal.  49;  132  Cal.  332. 

Certain  statutes  specified  as  continuing  in  force. 

23.  Nothing  in  this  code  affects  any  of  the  provisions  of  the 
following  statutes,  but  such  statutes  are  recognized  as  con- 
tinuing in  force,  notwithstanding  the   provisions  of  the   codes, 


23-24  PENAL  CODE.  49ft 

except  so  far  as  they  have  been  repealed  or  affected  by  sub- 
sequent laws: 

1.  All  acts  incorporating  or  chartering  municipal  cor- 
porations, and  acts  amending  or  supplementing  such  acts. 

2.  All  acts  consolidating  cities  and  counties,  and  acts  amend- 
ing or  supplementing!  such  acts. 

3.  All  acts  for  funding  the  state  debt,  or  any  part  there«f, 
and  for  issuing  state  bonds,  and  acts  amending  or  supplement- 
ing such  acts. 

4.  All  acts  regulating  and  in  relation  to  rhodeos. 

5.  All  acts  in  relation  to  judges  of  the  plains. 

6.  All  acts  creating  or  regulating  boards  of  water  com- 
missioners and  overseers  in  the  several  townships  or  counties 
of  the  state. 

7.  All  acts  in  relation  to  a  branch  state  prison. 

8.  An  act  for  the  more  effectual  prevention  of  cruelty 
to  animals,  approved  March  thirtieth,  eighteen  hundred  and 
sixty-eight. 

9.  An  act  for  the  suppression  of  Chinese  houses  of  ill- 
fame,  approved  March  thirty-first,  eighteen  hundred  and  sixty- 
six. 

10.  An  act  relating  to  the  Home  of  the  Inebriate  of  San 
Francisco,  and  to  prescribe  the  powers  and  duties  of  the  board 
of  managers  and  the  officers  thereof,  approved  April  first, 
eighteen  hundred  and  seventy. 

11.  An  act  concerning  marks  and  brands  in  the  county 
of  Siskiyou,  approved  March  twentieth,  eighteen  hundred  and 
sixty-six. 

12.  An  act  to  prevent  the  destruction  of  fish  in  the 
waters  of  Bolinas  bay,  in  Marin  county,  approved  March  thirty- 
first,  eighteen  hundred  and  sixty-six, 

13.  An  act  concerning  trout  in  Siskiyou  county,  approved 
April  second,  eighteen  hundred  and  sixty-six. 

14.  An  act  to  prevent  the  destruction  of  fish  in  Napa  river 
and  Sonoma  creek,  approved  January  twenty-ninth,  eighteeu 
hundred  and  sixty-eight. 

15.  An  act  to  prevent  the  destruction  of  fish  and  game 
in,  upon,  and  around  the  waters  of  Lake  Merritt  or  Peralta, 
in  the  county  of  Alameda,  approved  March  eighteenth,  eighteen 
hundred  and  seventy. 

16.  An  act  to  regulate  salmon  fisheries  in  Eel  river, 
in  Humboldt  county,  approved  April  eighteenth,  eighteen  hun- 
dred and  fifty-nine. 

17.  An  act  for  the  better  protection  of  stock-raisers  in  the 
counties  of  Fresno,  Tulare,  Monterey,  and  Mariposa,  approved 
March  twentieth,  eighteen  hundred  and  sixty-six. 

18.  An  act  concerning  oysters,  approved  April  twenty-eighth, 
eighteen  hundred  and  fifty-one. 

19.  An  act  concerning  oyster-beds,  approved  April  second, 
eighteen  hundred  and  sixty-six. 

20.  An  act  concerning  gas  companies,  approved  April 
fourth,  eighteen  hundred  and  seventy. 

This  act,  how  cited. 

24.  This  act,  whenever  cited,  enumerated,  referred  to,  or 
amended,  may  be  designated  simply  as  The  Penal  Code,  adding, 
when  necessary,  the  number  of  the  section. 


497  PERSONS  LIABLE  TO  PUNISHMENT.  26-2& 

PART  I. 


OF  CRIMES  AND  PUNISHMENTS. 


TITLE  I. 
OF  PERSONS  LIABLE  TO  PUNISHMENT  FOR  CRIME. 

Sec.    26.    Who   are   canable    of   committing   crimes. 

27.  AVho    are    11^*1)16    to    punishment. 

28.  Discharges   from   prisons   to  be  on   a   Monday. 

Who  are  capable  of  committing  crimes. 

26.  All  persons  are  capable  of  committing  crimes  except 
those  belonging  to  the  following  classes: 

One — Children  under  the  age  of  fourteen,  in  the  absence  of  clear 
proof  that  at  the  time  of  committing  the  act  charged  against 
them,  they  knew  its  wrongfulness. 

Two— Idiots. 

Three — Lunatics  and  insane  persons. 

Four — Persons  who  committed  the  act  or  made  the  omission 
charged  under  an  ignorance  or  mistake  of  fact,  which  disproves 
any  criminal  intent. 

Five — Persons  who  committed  the  act  charged  without  being 
conscious  thereof. 

Six — Persons  who  committed  the  act  or  made  the  omission 
charged  through  misfortune  or  by  accident,  when  it  appears 
that  there  was  no  evil  design,  intention,  or  culpable  negligence. 

Seven — Married  women  (except  for  felonies)  acting  under  the 
threats,   command,  or  coercion  of  their  husbands. 

Eight — Persons  (unless  the  crime  be  punishable  with  death)  who 
committed  the  act  or  made  the  omission  charged  under  threats 
or  menaces  sufficient  to  show  that  they  had  reasonable  cause 
to  and  did  believe  their  lives  would  be  endangered  if  they 
refused.  [Approved  March  30,  1874;  Amendments  1873-4,  p. 
422.     In  effect  July  1,  1874.] 

132  Cal,    328. 

Who  are  liable  to  punishment. 

27.  The  following  persons  are  liable  to  punishment  under 
the  laws  of  this  state: 

1.  All  persons  who  commit,  in  whole  or  in  part,  any  crime 
within  this  state; 

2.  All  who  commit  larceny  or  robbery  out  of  this  state, 
and  bring  to,  or  are  found  with  the  property  stolen,  in  this 
state; 

3.  All  who,  being  out  of  this  state,  cause  or  aid,  advise  or 
encourage,  another,  person  to  commit  a  crime  within  this  state, 
and  are  afterwards  found  therein. 

133  Cal.    2.^2. 

Discharges  from  prisons  to  be  on  a  Monday. 

28.  Every  person  now  confined  in  or  that  may  hereafter  be 
committed  to  and  confined  in  any  penitentiary,  prison,  jail, 
house  of  detention,  reform  school,  or  other  penal  institution, 
by  whatsoever  name  the  same  may  now  or  hereafter  be  known 
in  this  state,  under  conviction  for  a  penal  offense,  shall  be  dis- 
charged on  a  Monday,  regardless  of  the  day  of  the  week  upon 
which  the  term  or  time  of  confinement  prescribed  in  the  sen- 


CRIMES   --32 


30-37  PENAL  CODE.  498 

tence  or  terminated  by  credits  or  commutation  would  otherwise 
expire,  unless  the  Monday  upon  or  preceding  the  day  in  the 
&ame  week  upon  which  the  sentence  or  commutation  would 
otherwise  expire  shall  fall  upon  or  precede,  within  four  days,  a 
legal  holiday,  in  which  event,  such  person  shall  be  discharged 
upon  the  first  Monday  preceding  that,  which  will  not  be  upon 
or  be  followed  by  a  holiday  within  four  days.  [Stats.  1901, 
J?.  11.] 

TITLE  II. 

OF  PARTIES  TO  CRIME. 

Sec.    ."?().  riassilUation   of    parties   to   crime. 

31.  AVMio  are  principals.  • 

32.  Who  are   accessories. 

33.  Punlshineut  of  accessories. 

Classification  of  parties  to  crime. 

30.  The  parties  to  crimes  are  classified  as: 

1.  Principals;   and, 

2.  Accessories. 

Who  are  principals. 

31.  All  persons  concerned  in  the  commission  of  a  crime, 
whether  it  be  felony  or  misdemeanor,  and  whether  they  directly 
commit  the  act  constituting  the  offense,  or  aid  and  abet  in  its 
commission,  or,  not  being  present,  have  advised  and  encouraged 
its  comnlission,  and  all  persons  counseling,  advising,  or  encour- 
aging children  under  the  age  of  fourteen  years,  lunatics  or 
idiots,  to  commit  any  crime,  or  who,  by  fraud,  contrivance,  or 
force,  occasion  the  drunkenness  of  another  for  the  purpose  of 
causing  him  to  commit  any  crime,  or  who,  by  threats,  menaces, 
command,  or  coercion,  compel  another  to  commit  any  crime, 
are  principals  in  any  crime  so  committed. 

56    Cal.    398;    78    Cal.    86;   113   Cal.    179;    122    Cal. 
492. 

Who  are  accessories. 

32.  All  persons  who,  after  full  knowledge  that  a  felony  has 
beea  committed,  conceal  it  from  the  magistrate,  or  harbor  and 
piotect  the  person  charged  with  or  convicted  thereof,  are 
accessories. 

78  Cal.   87;   122  Cal.    187;   129  Cal.   368. 

Punishment  of  accessories. 

33.  Except  in  cases  where  a  different  punishment  is 
prescribed,  an  accessory  is  punishable  by  imprisonment  in  the 
state  prison  not  exceeding  five  years,  or  in  a  county  jail  not 
exceeding  two  years,  or  by  fine  not  exceeding  five  thousand 
dollars. 

TITLE  III. 

OP  OFFENSES  AGAINST  THE  SOVEREIGNTY  OF  THE 

STATE. 

Sec.    37.    Treason,    who   only  can   commit. 
38.     Misprision   of    trenson. 

Treason,  who  only  can  commit, 

37.  Treason  against  this  state  consists  only  in  levying  war 
against  it,  adhering  to  its  enemies,  or  giving  them  aid  and 
comfort,  and  can  be  committed  only  by  persons  owing  allegiance 
to  the  state.     The  punishment  of  treason  shall  be  death. 


499  CRIMES  AGAINST  ELECTIVE  FRANCHISE,  38-42 

Misprision  of  treason. 

38.  Misprision  of  treason  is  the  knowledge  and  concealment 
of  treason,  without  otherwise  assenting  to  or  participating  in 
the  crime.  It  is  punishable  by  imprisonment  in  the  state  prison 
for  a  terrn  not  exceeding  five  years. 

TITLE  IV. 

OF  CRIMES  AGAINST  THE  ELECTIVE  FRANCHISE. 

Sec.    40.  Person    acting    as    election    officer   without    appointment. 

41.  Violation    of   election    laws  by    certain   officers   a    felony. 

42.  Fraudulent  registration  a  felony. 

43.  RefTisal  to  be  sworn  or  to  answer  board  of  judges. 

44.  Refusal    to  obey   summons   of   board. 

45.  Fraudulent  voting. 

46.  Attempting  to  vote  without  being  qualified. 

47.  Procuring  illegal  voting. 

48.  Changing  ballots  or  altering   returns  by  election   officers. 

49.  Inspectors    nnfolrtlng    or    marking    tickets. 

50.  Forging  or  altering  returns. 

51.  Adding  to  or  subtracting  from  votes  given. 

52.  Persons  aiding  and  abetting. 

5.^.  Intimidating,   corrupting,   deceiving,   or  defrauding  electors. 

54.  Furnishing  money,  for  elections. 

55.  Offers   to   procure    offices   for   electors. 
.'16.  Communicating  such  offer. 

57.  Bribing  members     of  legislative  caucuses,  etc. 

5S.  Preventing  public  meetings. 

53.  Disturbance  of  public  meetings. 
60  Betting  on  elections. 

61.  Violation  of  election  laws  by  persons  not  officers. 

62.  Violation  of  election  laws  as  to  tickets. 

62a.  Circulation     of.    anonymous     circulars     referring    to     political 

candidates. 
621).  Printer    must    put    imprint    on    printed    matter. 

63.  Advancing  money  by  candidate  for  U.   S.  senate. 

6.3*.  Candidate  or   member   of   legislature   accepting  money. 

64.  Xo  prosecution  against  witness  testif.ying  in  election  cases. 
64J.  Primary   elections,    provisions   relating   to. 

Person   acting   as  election   officer  without   appointment. 

40.  Any  person  Who  acts  as  an  election  officer  at  any  election, 
without  first  having  been  appointed  and  qualified  as  such,  and 
any  person  who,  not  being  an  election  officer,  performs  or  dis- 
charges any  of  the  duties  of  an  election  officer,  in  regard  to  the 
handling  or  counting  or  canvassing  of  any  ballots  cast  at  any 
election,  shall  be  guilty  of  a  felony,  and  on  conviction  be  pun- 
ished by  imprisonment  in  the  state  prison  for  not  less  than  two 
nor  more  than  seven  years.  [New  section  approved  March  26, 
1895;    stats.  1895,  p.  74.     In  effect  March  26.  1895.] 

Violation  of  election   laws  by  certain   officers  a  felony. 

41.  Every  person  charged  with  the  performance  of  any 
duty,  under  the  provisions  of  any  law  of  this  state  relating  to 
elections,  who  wilfully  neglects  or  refuses  to  perform  it,  or  who, 
in  his  official  capacity,  knowingly  and  fraudulently  acts  in  con- 
travention or  violation  of  any  nf  the  provisions  of  such  laws,  is, 
unless  a  different  punishment  for  such  acts  or  omissions  is 
prescribed  by  this  code,  punishable  by  fine  not  exceeding  one 
thousand  dollars,  or  by  imprisonment  in  the  state  prison  not 
exceeding  five  years,  or  by  both. 

75    Cal.     631. 

Fraudulent  registration  a  felony. 

42.  Every  person  who  wilfully  cnusps,  procures,  or  allows  him- 
self to  be  registered  in  the  great  register  of  any  county,  knowing 
himself  not  to  be  entitled  to  such  registration,  is  punishable  by 


43-48  PENAL  CODE.  500 

fine  not  exceeding  one  thousand  dollars,  or  by  imprisonment 
in  the  county  jail  or  state  prison  not  exceeding  one  year,  or 
by  both.  In  all  cases  where,  on  the  trial  of  a  person  charged 
with  any  offense  under  the  provisions  of  this  section,  it  appears 
in  evidence  that  the  accused  stands  registered  in  the  great 
register  of  any  county,  without  being  qualified  for  such  regis- 
tration, the  court  must  order  such  registration  to  be  canceled. 

Refusal   to  be  sworn  or  to   answer  board   of  judges. 

43.  Every  person  who,  after  being  required  by  the  board  of 
judges  at  any  election,  refuses  to  be  sworn,  or,  being  sworn, 
refuses  to  answer  any  pertinent  question,  propounded  by  such 
board,  touching  the  right  of  another  to  vote,  is  guilty  of  a  mis- 
demeanor. [Amendment  approved  March  30,  1874;  amendments 
1873-4,  p.  423.     In  effect  Jffly  1,  1874.] 

Refusal  to  obey  summons  of  board. 

44.  Every  person  summoned  to  appear  and  testify  before 
any  board  of  registration,  who  wilfully  disobeys  such  summons, 
is  guilty  of  a  misdemeanor. 

Fraudulent  voting. 

45.  Every  person  not  entitled  to  vote,  who  fraudulently  votes, 
and  every  person  who  votes  more  than  once  at  any  one  election, 
or  knowingly  hands  in  two  or  more  tickets  folded  together,  or 
changes  any  ballot  after  the  same  has  been  deposited  in  the  ballot- 
box,  or  adds,  or  attempts  to  add,  any  ballot  to  those  legally  polled 
at  any  election,  either  by  fraudulently  introducing  tne  same  into 
the  ballot-box  before  or  after  the  ballots  therein  have  been  count- 
ed; or  adds  to  or  mixes  with,  or  attempts  to  add  to  or  mix  with, 
the  ballots  lawfully  polled,  other  ballots,  while  the  same  are  being 
counted  or  canvassed,  or  at  any  other  time,  with  intent  to 
change  the  result  of  such  election;  or  carries  away  or  destroys, 
or  attempts  to  carry  away  or  destroy,  any  poll  list,  or  ballots, 
or  ballot-box,  for  the  purpose  of  breaking  up  or  invalidating 
such  election,  or  wilfully  detains,  mutilates,  or  destroys  any 
election  returns,  or  in  any  manner  so  interferes  with  the  officers 
holding  such  election  or  conducting  such  canvass,  or  with  the 
voters  lawfully  exercising  their  rights  of  voting  at  such  election, 
as  to  prevent  such  election  or  canvass  from  being  fairly  held  and 
lawfully  conducted,  is  guilty  of   felony. 

91    Cal.     467. 

Attempting  to  vote  without  being  qualified. 

46.  Every  person  not  entitled  to  vote,  who  fraudulently 
attempts  to  vote,  or  who,  being  entitled  to  vote,  attempts  to 
vote  more  than  once  at  any  election,  is  guilty  of  a  misdemeanor. 

Procuring  illegal  voting. 

47.  Every  person  who  procures,  aids,  assists,  counsels,  or 
advises  another  to  give  or  offer  his  vote  at  any  election,  knowing 
that  the  person  is  not  qualified  to  vote,  is  guilty  of  a  mis- 
demep-nor. 

Changing   ballots  or  altering   returns  by  election   officers. 

48.  Every  officer  or  clerk  of  election  who  aids  in  changing 
or  destroying  any  poll  list,  or  in  placing  any  ballots  in  the  ballot 
box.  or  taking  any  therefrom,  or  adds,  or  attempts  to  add,  any 
ballots  to  those  legally  polled  at  such  election,  either  by  fraudu- 
lently introducing  the  same  into  the  ballot  box  before  or  after 
thf?  ballots  therein  have  been  counted,  or  adds  to  or  mixes  with, 
or  atteniipts  to  add  to  or  mix  with  the  ballots  polled  any  other 


501  CRIMES  AGAINST  ELECTIVE  FRANCHISE.  49-53 

ballots,  while  the  same  are  being  counted  or  canvassed,  or  at 
any  other  time,  with  intent  to  change  the  result  of  such  election, 
or  allows  another  to  do  so,  when  in  his  power  to  prevent  it, 
or  carries  away  or  destroys,  or  knowingly  allows  another  to 
carry  away  or  destroy  any  poll  list,  ballot  box,  or  ballots  law- 
fully polled,  is  punishable  by  imprisonment  in  the  state  prison 
for  not  less  than  two  nor  more  than  seven  years. 

Inspectors   unfolding    or   marking  tickets. 

49.  Every  inspector,  judge,  or  clerk  of  an  election,  who,  pre- 
vious to  putting  the  ballot  of  an  elector  in  the  ballot  box, 
attempts  to  find  out  any  name  on  such  ballot,  or  who  opens  or 
suffers  the  folded  ballot  of  any  elector  which  has  been  handed 
in  to  be  opened  or  examined  previous  to  putting  the  same  into 
the  ballot  box,  or  who  makes  or  pla-ces  any  mark  or  device  on 
any  folded  ballot  with  the  view  to  ascertain  the  name  of  any 
person  for  whom  the  elector  has  voted,  or  who,  without  the 
consent  of  the  elector,  discloses  the  name  of  any  person  which 
such  inspector,  judge,  or  clerk  has  fraudulently  or  illegally  dis- 
covered to  have  been  voted  for  by  such  elector,  is  punishable  by 
fine,  not  less  than  fifty  nor  more  than  five  hundred  dollars. 

Forging  or  altering  returns. 

50.  EVery  person  who  forges  or  counterfeits  returns  of  an 
election  purporting  to  have  been  held  at  a  precinct,  town,  or 
ward  where  no  election  was  in  fact  held,  or  wilfully  substitutes 
foYged  or  counterfeit  returns  of  election  in  the  place  of  the  true 
returns,  for  a  precinct,  town,  or  ward  where  an  election  was 
actually  held,  is  punishable  by  imprisonment  in  the  state  prison 
for  a  term  not  less  than  two  nor  more  than  ten  years. 

Adding  to  or  subtracting  from  votes  given. 

51  <■  Every  person  who  wilfully  adds  to  or  subtracts  from  the 
votes  actually  cast  at  an  election,  in  any  returns,  or  who  alters 
such  returns,  is  punishable  by  imprisonment  in  the  state  prison 
for  not  less  than  one  nor  more  than  five  years. 

Persons  aiding  and  abetting. 

52.  Every  person  who  aids  or  abets  in  the  commission  of  any 
of  the  offenses  mentioned  in  the  four  preceding  sections,  is  pun- 
ishable by  imprisonment  in  the  county  jail  for  the  period  of  six 
months,  or  in  the  state  prison  not  exceeding  two  years.  [Ap- 
proved March  30,  1874;  amendments  1873-4,  p.  423.  In  effect 
July  1,  1874.] 

Intimidating,    corrupting,    deceiving,    or    defrauding    electors. 

53.  Every  person  who,  by  force,  threats,  menaces,  bribery,  or 
any  corrupt  means,  either  directly  or  indirectly,  attempts  to 
influence  any  elector  in  giving  his  vote,  or  to  deter  him  from 
giving  the  same;  or  attempts  by  any  means  whatever  to  awe, 
restrain,  hinder,  or  disturb  any  elector  in  the  exercise  of  the 
right  of  suffrage,  or  furnishes  any  elector  wishing  to  vote,  who 
cannot  read,  with  a  ticket,  informing  or  giving  such  elector  to 
understand  that  it  contains  a  name,  written  or  printed  thereon, 
different  from  the  name  which  is  written  or  printed  thereon,  or 
defrauds  any  elector  at  any  such  election  by  deceiving  and 
causing  such  elector  to  vote  for  a  different  person  for  any  office 
than  he  intended  or  desired  to  vote  for;  or  who,  being  inspector, 
judge,  or  cierk  of  any  election,  while  acting  as  such,  induces 
or  attempts  to  induce  any  elector,  either  by  menace  or  reward, 
or  promise  thereof,  to  vote  differently  from  what  such  elector 


54-59  PENAL  CODE.  502 

Intended  or  desired  to  vote,  is  guilty  of  felony.     [Amendment 
approved  February  23,  1893;    stats.  1893,  p.  7.] 

Furnishing  money  for  elections. 

54.  Every  person  who,  with  intent  to  promote  the  election  of 
himself  or  any  other  person,  either — 

1.  Furnishes  entertainment  at  his  expense  to  any  meeting 
of  electors  previous  to  or  during  an  election; 

2.  Pays  for,  procures,  or  engages  to  pay  for  any  such  enter- 
tainment; 

3.  Furnishes  or  engages  to  pay  or  deliver  any  money  or  prop- 
erty for  the  purpose  of  procuring  the  attendance  of  voters  at  the 
polls,  or  for  the  purpose  of  compensating  any  person  for  procur- 
ing attendance  of  voters  at  the  polls,  except  for  the  conveyance 
of  voters  who  are  sick  or  infirm; 

4.  Furnishes  or  engages  to  pay  or  deliver  any  money  or  prop- 
erty for  any  purpose  intended  to  promote  the  election  of  any 
candidate,  except  for  the  expenses  of  holding  and  conducting 
public  meetings  for  the  discussion  of  public  questions  and  of 
printing  and  circulating  ballots,  handbills,  and  other  papers 
previous  to  such  election; 

— is  guilty  of  a  misdemeanor. 

Offers  to   procure  offices  for  electors. 

55.  Every  person  who.  being  a  candidate  at  any  election, 
offers  or  agrees  to  appoint  or  procure  the  appointment  of  any 
particular  person  to  office,  as  an  inducement  or  consideration 
to  any  person  to  vote  for,  or  procure  or  aid  in  procuring  the 
election  of  such  candidate,  is  guilty  of  a  misdemeanor. 

Communicating  such  offer. 

56.  Every  person,  not  being  a  candidate,  who  communicates 
any  offer,  made  in  violation  of  the  last  section,  to  any  parson, 
with  Intent  to  induce  him  to  vote  for  or  to  procure  or  aid  in 
procuring  the  election  of  the  candidate  making  the  offer,  is  guilty 
of  a  misdemeanor. 

Bribing    members   of    legislative   caucuses,   etc. 

57.  Every  person  who  gives  or  offers  a  bribe  to  any  officer  or 
member  of  any  legislative  caucus,  political  convention,  com- 
mittee, primary  election,  or  political  gathering  of  any  kind,  held 
for  the  purpose  of  nominating  candidates  for  offices  ot  honor, 
trust,  or  profit,  in  this  state,  with  intent  to  influence  the  person 
to  whom  such  bribe  is  given  or  offered  to  be  more  favorable  to 
one  candidate  than  another,  and  every  person,  member  of  either 
of  the  bodies  in  this  section  mentioned,  who  receives  or  offers 
to  receive  any  such  bribe,  is  punishable  by  imprisonment  in  the 
state  prison  not  less  than  one   nor  more  than  fourteen  years. 

126    Cal.    352. 

Preventing  public  meetings. 

58.  Every  person  who,  by  threats,  intimidations,  or  unlawful 
violence,  wilfully  hinders  or  prevents  electors  from  assembling 
in  public  meeting  for  the  consideration  of  public  questions,  is 
guilty  of  a  misdemeanor. 

Plsturbance  of  public  meetings. 

59.  Every  person  who  wilfully  disturbs  or  breaks  up  any 
public  meeting  of  electors  or  others,  lawfully  being  held  for  the 
purpose  of  considering  public  questions,  is  guilty  of  a  mis^ 
demeanor. 


603  CRIMES  AGAINST  ELECTIVE  FRANCHISE.  60-63 

Betting  on  elections. 

60.  Every  person  who  makes,  offers,  or  accepts  any  bet  or 
wager  upon  the  result  of  any  election,  or  upon  the  success  or 
failure  of  any  person  or  candidate,  or  upon  the  number  of  votes 
to  be  cast,  either  in  the  aggregate  or  for  any  particular  can- 
didate, or  upon  the  vote  to  be  cast  by  any  person,  is  guilty  of  a 
misdemeanor. 

Violation   of  election   laws  by   persons   not  officers. 

61.  Every  person  who  wilfully  violates  any  of  the  provisions 
of  the  laws  of  this  state  relating  to  elections  is,  unless  a  different 
punishment  for  such  violation  is  prescribed  by  this  code,  pun- 
ishable by  fine  not  exceeding  one  thousand  dollars,  or  by 
imprisonment  in  the  state  prison  not  exceeding  five  years,  or  by 
both. 

Violation  of  election   laws  as  to  tickets. 

62.  Every  person  who  prints  any  ticket  not  in  conformity  with 
section  one  thousand  one  hundred  and  ninety-one  of  the  Political 
Code,  or  who  circulates  or  gives  to  another  any  ticket,  knowing 
at  the  time  that  such  ticket  does  not  conform  to  the  provisions 
of  section  one  thousand  one  hundred  and  ninety-one  of  the 
Political  Code,  is  guilty  of  a  misdemeanor.  [New  section  ap- 
proved March  23,  1874;  amendments  1873-4,  p.  456.  In  effect  in 
sixty  days.] 

Circulation  of  anonymous  circulars  referring  to  political  can- 
didates. 
62a.  Every  person  who  intentionally  writes,  prints,  posts,  or 
distributes,  or  causes  to  be  written,  printed,  posted,  or  distrib- 
uted, any  circular,  pamphlet,  letter,  or  poster  which  is  designed 
or  intended  to  injure  or  defeat  any  candidate  for  nomination 
or  election  to  any  public  office  by  reflecting  upon  his  personal 
character  or  political  action,  unless  there  appears  upon  such 
circular,  pamphlet,  letter,  or  poster,  in  a  conspicuous  place, 
either  the  name  of  the  chairman  and  secretary  or  the  names  of 
two  officers  at  least  of  the  political  or  other  organization  issu- 
ing the  same,  or  the  name  and  residence,  with  the  street  and 
number  thereof,  if  any,  of  some  voter  of  this  state,  and  respon- 
sible therefor,  shall  be  guilty  of  a  misdemeanor.  [Stats.  1901, 
p.  297.] 

Printer  must  put  imprint  on  printed  matter. 

62b.  Every  person  who  prints  any  circular,  pamphlet,  letter, 
or  poster  of  the  kind  or  character  mentioned  in  section  sixty- 
two  a  of  this  code,  without  adding  thereto  his  name/  showing 
the  printing  office  at  which  the  same  was  printed,  is  guilty  of 
a  misdemeanor.     [Stats.  1901,  p.  298.] 

Advancing  money  by  candidate  for  United  States  Senate. 

63.  Every  candidate  for  .United  States  senator  at  an  approach- 
ing session  of  the  legislature,  and  every  person  acting  for  or  on 
behalf  of  any  such  candidate  for  senator  in  the  congress  of  the 
United  States  at  an  approaching  session  of  the  legislature,  who 
shall  advance  or  give  or  loan,  or  promise  to  advance  or  give 
or  loan,  any  money  or  property  to  any  candidate  for  the  legis- 
lature, before  or  after  his  nomination,  or  before  or  after  his 
election,  under  an  express  or  implied  promise  that  such  can- 
didate for  the  legislature  (whether  nominated  or  not,  or  before, 
or  after  his  election)    will  support  or  vote  for  such  candidate 


63^-64^  PENAL  CODE.  504 

for  senator  in  the  congress  of  the  United  States  at  an  approach- 
ing session  of  the  legislature,  shall  be  deemed  guilty  of  a  felony. 
The  advancing,  giving,  or  loaning  of  money  or  property,  or  the 
promise  to  advance,  give,  or  loan  money  or  property  to  any  can- 
didate for  the  legislature,  by  any  candidate  for  senator  as  afore- 
said, or  by  any  person  for  him,  or  on  his  behalf,  as  aforesaid, 
shall  be  deemed  prima  facie  proof  of  an  express  or  implied 
agreement  that  such  candidate  for  the  legislature  will,  if  elected 
to  the  legislature,  vote  for  such  candidate  for  senator  in  con- 
gress    I  In  effect  60  days  from  March  9,  1899;   Stats,  p.  83.] 

Candidate  or  member  of  legislature  accepting  money. 

631^.  Every  person  being  a  member-elect  of  the  legislature, 
and  every  person  being  a  candidate  for  the  legislature,  and  every 
person  being  a  candidate  for  nomination  for  the  legislature,  who 
shall  accept  any  money  or  property  from  any  candidate  for  sen- 
ator in  the  congress  of  the  United  States  before  the  legislature 
at  an  approaching  session  thereof,  or  from  any  other  person 
acting  for  or  on  behalf  of  any  such  candidate  for  senator  in  the 
congress  of  the  United  States  at  an  approaching  session  of  the 
legislature,  under  an  express  or  implied  promise  that  such  mem- 
ber-elect of  the  legislature,  or  such  candidate  for  the  legislature, 
or  candidate  for  nomination  for  the  legislature,  will,  if  elected 
as  a  member  of  the  legislature,  support  or  vote  for  any 
such  candidate  for  senator  in  the  congress  of  the  United 
States  for  that  office,  shall  be  deemed  guilty  of  a  felony.  The 
receipt  of  money  or  property  by  any  member-elect  of  the  legis- 
lature, and  by.  any  candidate  for  the  legislature,  and  by 
any  candidate  for  nomination  for  the  legislature,  from  any 
candidate  before  the  legislature  for  senator  in  congress  at  an 
approaching  session  of  the  legislature  as  aforesaid,  or  from  any 
person  acting  for  or  on  behalf  of  any  such  candidate  for  senator 
in  congress  as  aforesaid,  shall  be  prima  facie  proof  of  an  express 
or  implied  agreement  that  such  member-elect  of  the  legislature 
will  vote  for  such  candidate  for  senator  as  aforesaid,  and  that 
such  candidate,  or  candidate  for  nomination  for  the  legislature, 
will,  if  elected,  vote  for  such  candidate  for  senator  as  aforesaid. 
[In  effect  60  days  from  March  9,  1899;   stats.,  p.  84.1 

No  prosecution   against  witness  testifying    in   election  cases. 

64.  No  person,  otherwise  competent  as  a  witness,  shall  be 
disqualified  or  excused  from  testifying  concerning  any  of  the 
offenses  enumerated  and  prescribed  in  this  title,  on  the  ground 
that  such  testimony  may  criminate  himself;  but  no  prosecution 
can  afterwards  be  had  against  such  witness  for  any  such  offense 
concerning  which  he  testified  for  the  prosecution.  fNew  section- 
added  March  20,  1891;  stats.  1891,  p.  185.] 

Primary  elections,  provisions  relating  to. 

641/^.  All  the  provisions  of  sections  forty  to  sixty-four  of  this 
code,  both  Inclusive,  shall  apply  with  like  force  and  effect  to 
elections,  known  and  designated  as  primary  elections,  held  and 
conducted  under  official  supervision  pursuant  to  law  and  to 
registration  therefor,  as  to  other  elections,  whether  the  word 
"primary"  be  used  in  connection  with  the  word  "election"  or 
"elections"  used  in  said  sections  or  not.  (In  effect  at  passage. 
Signed  by  governor  March  20,  1899,  deposited  with  secretary  of 
state  March  28,  1899.  This  is  identical  with  another,  being 
chapter  LII  of  the  statutes  of  1899..  in  effect  March  4,  1899,  but 
without  any  enacting  clause.) 


505  CRIMES  BY  AND  AGAINST  EXECUTIVE  POWER.  65-70 

TITLE  V. 

CRIMES    BY   AND   AGAINST   THE   EXECUTIVE    POWER   OF 

THE   STATE. 

Sec.    0.5.  Acting   in  a   public  capacity   witliout  having  quaiifled. 

66.  Acts  of  officers  de  facto  not  affected. 

67.  Giving  or  offering  l)ril)es  to  executive  officers. 

68.  Aslving  or  receiving  l)ril)es. 
0!».  Ile.si.stlng  officers. 

70.  Extortion. 

71.  Officers   illegally    interested   in    contracts. 

7li.  Presenting  fraudulent  l)ills  or  claims  for  allowance  or  payment. 

7.'?.  Hnying  appointments   to  office. 

74.  Taking  rewards  for  deputation. 

75.  Exercising  functions-  of  office  wrongfully. 

76.  Refusal   to   surrender   hooks,    etc..   to   successor. 

77.  Sections  to  apply  to  administrative  and  ministerial   officers. 

Acting  in  a  public  capacity  without  liaving  quaiifiec!. 

65.  Every  person  who  exercises  any  function  of  a  public 
office  without  taking  the  oath  of  office,  or  without  giving  the 
required  bond,  is  guilty  of  a  misdemeanor.  [Approved  March 
30,  1874;    amendments  1873-4;  p.  423.     In  effect  July  1,  1874.] 

Acts  of  officers  de  facto  not  affected. 

66.  The  last  section  shall  not  be  construed  to  affect  the 
validity  of  acts  done  by  a  person  exercising  the  functions  of  a 
public  office  in  fact,  where  other  persons  than  himself  are 
Interested  in  maintaining  the  validity  of  such  acts. 

Giving   or  offering   bribes  to  executive  officers. 

67.  Every  person  who  gives  or  offer^  any  bribe  to  any  execu- 
tive officer  of  this  state,  with  intent  to  influence  him  in  respect 
to  any  act,  decision,  vote,  opinion,  or  other  proceeding  as  such 
officer,  is  punishable  by  imprisonment  in  the  state  prison  not 
less  than  one  nor  more  than  fourteen  years,  and  is  disqualified 
from  holding  any  office  in  this  state. 

62    Cal.    49S;     64    Cal.     163. 

Asking  or  receiving  bribes. 

68.  Every  executive  officer,  or  person  elected  or  appointed  to 
an  executive  office,  who  asks,  receives,  or  agrees  to  receive,  any 
bribe,  upon  any  agreement  or  understanding  that  his  vote,  opin- 
ion, or  action  upon  any  matter  then  pending,  or  which  may  be 
brought  b':fore  him  in  his  official  capacity,  shall  be  influenced 
thereby,  is  punishable  by  imprisonment  in  the  state  prison  not 
less  than  one  nor  more  than  fourteen  years;  and,  in  addition 
thereto,  forfeits  his  office,  and  is  forever  disqualified  from  holding 
any  office  in  this  state. 

64    Cal.    loS;    68    Cal.    550. 

Resisting   officers. 

69.  Every  person  who  attempts,  by  means  of  any  threat  or 
violence,  to  deter  or  prevent  an  executive  officer  from  performing 
any  duty  imposed  upon  such  officer  by  law,  or  who  knowingly 
resists,  by  the  use  of  force  or  violence,  such  officer,  in  the  per- 
formance of  his  duty,  is  punishable  by  fine  not  exceeding  five 
thousand  dollars,  and  imprisonment  in  the  county  jail  not 
exceeding  five  years. 

Extortion. 

70.  Every  executive  or  ministerial  officer  who  knowingly 
asks  or  receives  any  emolument,  gratuity,  or  reward,  or  any 
promise  thereof,  excepting  such  as  may  be  authorized  by  law, 
for  doing  any  official  act,  is  guilty  of  a  misdemeanor.     [Approved 


71-77  PENAL  CODE.  606 

March  30,  1874;    amendments   1873-4,   p.  423.     In  effect  July  1, 
1874.] 

60  Cal.    117. 

Officers  illegally  interested   in  contracts. 

71.  Every  officer  or  person  prohibited  by  the  laws  of  this 
state  from  making  or  being  interested  in  contracts,  or  from 
becoming  a  vendor  or  purchaser  at  sales,  or  from  purchasing 
scrip,  or  other  evidences  of  indebtedness,  who  violates  any  of 
the  provisions  of  such  laws,  is  punishable  by  a  fine  of  not  more 
than  one  thousand  dollars,  or  by  imprisonment  in  the  state 
prison  not  more  than  five  years,  and  is  forever  disqualified  from 
holding  any  office  in  this  state. 

125   Cal.   12». 

Presenting  fraudulent  bills  or  claims  for  allowance  or  payment. 

72.  Every  person  who,  with  intent  to  defraud,  presents  for 
allowance  or  for  'payment  to  any  state  board  or  officer,  or  to 
any  county,  town,  city,  ward,  or  village  board  or  officer,  author- 
ized to  allow  or  pay  the  same  if  genuine,  any  false  or  fraudulent 
claim,  bill,  account,  voucher,  or  writing,  is  guilty  of  felony. 

71   Cal.    136. 

Buying  appointments  to  office. 

73.  Every  person  who  gives  or  offers  any  gratuity  or  reward, 
in  consideration  that  he  or  any  other  person  shall  be  appointee^ 
to  any  public  office,  or  shall  be  permitted  to  exercise  or  dis- 
charge the  duties  thereof,  is  guilty  of  a  misdemeanor. 

Taking  rewards  for  deputation. 

74.  Every  public  officer  who,  for  any  gratuity  or  reward, 
appoints  another  person  to  a  public  office,  or  permits  another 
person  to  exercise  or  discharge  any  of  the  duties  of  his  office, 
is  punishable  by  a  fine  not  exceeding  five  thousand  dollars,  and, 
in  addition  thereto,  forfeits  his  office  and  is  forever  disqualified 
from  holding  any  office  in  this  state. 

Exercising  functions  of  office  wrongfully. 

75.  Every  person  who  wilfully  and  knowingly  intrudes  him- 
self into  any  public  office  to  which  he  has  not  been  elected  or 
appointed,  and  every  person  who,  having  been  an  executive 
officer,  wilfully  exercises  any  of  the  functions  of  his  office  after 
his  term  has  expired,  and  a  successor  has  been  elected  or 
appointed  and  has  qualified,  is  guilty  of  a  misdemeanor. 

Refusal  to  surrender  books,  etc.,  to  successor. 

76.  Every  officer  whose  office  is  abolished  by  law,  or  who, 
after  the  expiration  of  the  time  for  which  he  may  be  appointed 
or  elected,  or  after  he  has  resigned  or  been  legally  removed  from 
office,  wilfully  and  unlawfully  withholds  or  detains  from  his 
successor,  or  other  person  entitled  thereto,  the  records,  papers, 
documents,  or  other  writing  appertaining  or  belonging  to  his 
office,  or  mutilates,  destroys,  or  takes  away  the  same,  is  pun- 
ishable by  imprisonment  in  the  state  prison  not  less  than  one 
nor  more  than  ten  years. 

im   Cal.    493. 

Sections  to  apply  to  administrative   and    ministerial  officers. 

77.  The  various  provisions  of  this  chapter  apply  to  admin- 
istrative and  ministerial  officers,  in  the  same  manner  as  if  they 
were  mentioned  therein. 


607  CRIMES  AGAINST  LEGISL\riVE  POWER.  81-86 

TITLE  VI. 
OF  CRIMES   AGAINST   THE   LEGISLATIVE   POWER. 

Sec.    81.  Preventing  the  meeting   of  the  legislature. 

82.  Disturbing    the    legislature    while    in    .session. 

83.  Altering   draft   of   bill   or    resolution. 

84.  Altering  enrolle<l   cnijy  of  bill  or  resolution 

8.5.  Giving  or  offering  bribes  to  members   of  the   legislature. 

86.  Receiving  bril)es   by   nieuibers  of  the  legislature. 

87.  Witnesses    refusing   to    attend,    etc.,    before    the    legislature. 

88.  Bribes  by   members  of  the  legislature. 

89.  Lobbying. 

Preventing  the  meeting  of  the  legislature. 

81.  Every  person  who  wilfully,  and  by  force  or  fraud,  pre- 
vents the  legislature  of  this  state,  or  either  of  the  houses  com- 
posing it,  or  any  of  the  members  thereof,  from  meeting  or 
organizing,  is  guilty  of  felony. 

Disturbing  the   legislature  while   in  session. 

82.  Every  person  who  wilfully  disturbs  the  legislature  of  this 
state,  or  either  of  the  houses  composing  it,  while  in  session,  or 
who  commits  any  disorderly  conduct  in  the  immediate  view  and 
presence  of  either  house,  tending  to  interrupt  its  proceedings 
or  impair  the  respect  due  to  its  authority,  is  guilty  of  a  mis- 
demeanor. 

Altering  draft  of  bill   or  resolution. 

83.  Every  person  who  fraudulently  alters  the  draft  of  any 
bill  or  resolution  which  has  been  presented  to  either  of  the 
houses  composing  the  legislature,  to  be  passed  or  adopted,  with 
intent  to  procure  it  to  be  passed  or  adopted  by  either  house, 
or  certified  by  the  presiding  officer  of  either  house,  in  language 
different  from  that  intended  by  such  house,  is  guilty  of  felony. 

Altering  enrolled  copy  of  bill  or  resolution. 

84.  Every  person  who  fraudulently  alters  the  enrolled  copy 
of  any  bill  or  resolution  which  has  been  passed  or  adopted  by 
the  legislature  of  this  state,  with  intent  to  procure  it  to  be 
approved  by  the  governor,  or  certified  by  the  secretary  of  state, 
or  printed  or  published  by  the  printer  of  the  statutes,  in  lan- 
guage different  from  that  in  which  it  was  passed  or  adopted 
by  the  legislature,  is  guilty  of  felony. 

Giving   or  offering   bribes  to   members  of  the   legislature. 

85.  Every  person  who  gives  or  offers  to  give  a  bribe  to  any 
member  of  the  legislature,  or  to  another  person  for  him,  or 
attempts  by  menace,  deceit,  suppression  of  truth,  or  any  corrupt 
means,  to  influence  a  member  in  giving  or  withholding  his  vote, 
or  in  not  attending  the  house  or  any  committee  of  which  he  is 
a  member,  is. punishable  by  imprisonment  in  the  state  prison  not 
less  than  one  nor  more  than  ten  years. 

Receiving   bribes  by  members  of  the   legislature. 

86.  Every  member  of  either  of  the  houses  composing  the 
legislature  of  this  state  who  asks,  receives,  or  agrees  to  receive 
any  bribe  upon  any  understanding  that  his  oflicial  vote,  opinion, 
judgment,  or  action  shall  be  influenced  thereby,  or  shall  be 
given  in  any  particular  manner,  or  upon  any  particular  side  of 
any  question  or  matter  upon  which  he  may  be  required  to  act 
in  his  official  capacity,  or  gives,  or  offers,  or  promises  to  give 
any  official  vote  in  consideration  that  another  member  of  the 
legislature  shall  give  any  such  vote,  either  upon  the  same  or 
another  question    is   punishable  by   imprisonment  in  the  state 


87-92  PENAL  CODE.  508 

prison  hot  less  than  one  nor  more  than  fourteen  years,  and  upon 
conviction  thereof  shall,  ^n  addition  to  said  punishment,  forfeit 
his  office,  be  disfranchised,  and  forever  disqualified  from  holding 
any  office  or  public  trust.  |  Amendment  approved  April  6,  1880; 
amendments  1880,  p.  7.    In  effect  April  6,  1880.] 

Witnesses  refusing  to  attend,  etc.,  before  the  legislature. 

87.  Every  person  who,  being  summoned  to  attend  as  witness 
before  either  house  of  the  legislature  or  any  committee  thereof, 
refuses  or  neglects,  without  lawful  excuse,  to  attend  pursuant 
to  such  summons;  and  every  person  who,  being  present  before 
either  house  of  the  legislature  or  any  committee  thereof,  wilfully 
refuses  to  be  sworn  or  to  answer  any  material  and  proper 
question,  or  to  produce,  upon  reasonable  notice,  any  material 
and  proper  books,  papers,  or  documents  in  his  possession  or 
under  his  control,  is  guilty  of  a  misdemeanor. 

Bribes  by  members  of  the  legislature. 

88.  Every  member  of  the  legislature  convicted  of  any  crime 
defined  in  this  chapter,  in  addition  to  the  punishment  prescribed, 
forfeits  his  office  and  is  forever  disqualified  from  holding  any 
office  in  this  state. 

Lobbying. 

89.  Every  person  who  obtains,  or  seeks  to  obtain  money  or 
other  thing  of  value  from  another  person,  upon  a  pretense,  claim, 
or  representation  that  he  can  or  will  improperly  influence  in  any 
manner  the  action  of  any  member  of  a  legislative  body  in  regard 
to  any  vote  or  legislative  matter,  is  guilty  of  a  felony.  Upon 
the  trial  no  person  otherwise  competent  as  a  witness  shall  be 
excused  from  testifying  as  such  concerning  the  offense  charged, 

"on  the  grounds  that  such  testimony  may  criminate  himself,  or 
subject  him  to  public  infamy,  but  such  testimony  shall  not  after- 
wards be  used  against  him  in  any  judicial  proceeding  except  for 
perjury  in  giving  such  testimony.  [Amendment  approved  April 
6,  1880;  amendments  1880,  p.  7.     In  effect  April  6,  1880.] 

TITLE  Vn. 
OF  CRIMES  AGAINST  PUBLIC  JUSTICE. 

•Chapter  I.  Bribery  and  Corruption. 

II.  Rescue. 

III.  Escapes  and  aiding  therein. 

IV.  Forging,  stealing,  mutilating,  and  falsifying  judicial 

and  public  records  and  documents. 
V.     Perjury  and  subornation  of  perjury. 
VI.     Falsifying  evidence. 
VII.     Other  offenses  against  public  justice. 
VIII.     Conspiracy. 

CHAPTER  I. 
BRIBERY  AND  CORRUPTION. 

Sec.    92.  Giving   bribes   to  judges,   jurors,    referees,   etc. 

93.  Receiving  bribes  by  judicial  officers,  jurors,   etc. 

94.  Extortion. 

95.  Improper  attempts  to   lnfl,uence  jurors,   referees,  etc. 

96.  Misconduct  of  jurors,   referees,   etc. 

97.  Justice    or    constable    purchasing    judgment. 

98.  Officers  convicted  of,  disfranchised. 

99.  Superintendent  of  printing.   Intereslj  In   contracts,   etc. 

100.    Superintendent    of   printing,    collusion    in    furnishing    materials. 

Giving  bribes  to  judges,  jurors,  referees,  etc. 

92.     Every  person  who  gives  or  offers  to  give  a  bribe  to  any 


509  BRIBERY  AND  CORRUPTION.  93-96 

judicial  officer,  juror,  referee,  arbitrator,  or  umpire,  or  to  any 
person  who  may  be  authorized  by  law  to  hear  or  determine  any 
question  or  controversy,  with  intent  to  influence  his  vote, 
opinion,  or  decision  upon  any  matter  or  question  which  is  or  may 
be  brought  before  him  for  decision,  is  punishable  by  imprison- 
ment in  the  state  prison  not  less  than  one  nqr  more  than  ten 
years. 

Receiving  bribes  by  judicial  officers,  jurors,  etc. 

93.  Every  judicial  officer,  juror,  referee,  arbitrator,  or  umpire, 
and  every  person  authorized  by  law  to  hear  or  determine  any 
question  or  controversy,  who  asks,  receives,  or  agrees  to  receive, 
any  bribe,  upon  any  agreement  or  understanding  that  his  vote, 
opinion,  or  decision  upon  any  matters  or  question  which  is  or 
may  be  brought  before  him  for  decision,  shall  be  influenced 
thereby,  is  punishable  by  imprisonment  in  the  state  prison  not 
less  than  one  nor  more  than  ten  years. 

&4)  Cal.    436;   99  Cal.    228. 

Extortion. 

94.  Every  judicial  officer  who  asks  or  receives  any  emolu- 
ment, gratuity,  or  reward,  or  any  promise  thereof,  except  such 
as  may  be  authorized  by  law,  for  doing  any  official  act,  is  guilty 
of  a  misdemeanor.  Every  judicial  officer  who  shall  ask  or 
receive  the  whole  or  any  part  of  the  fees  allowed  by  law  to  any 
stenographer  or  reporter  appointed  by  him,  or  any  other  person, 
to  record  the  proceedings  of  any  court  or  investigation  held  by 
him,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  forfeit  his  office.  Any  stenographer  or  reporter, 
appointed  by  any  judicial  officer  in  this  state,  who  shall  pay,  or 
offer  to  pay,  the  whole  or  any  part  of  the  fees  allowed  him  by 
law,  for  his  appointment  or  retention  in  office,  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  forever  dis- 
qualified from  holding  any  similar  office  in  the  courts  of  this 
state.  [Amendments  approved  March  8,  1895;  stats.  1895,  p. 
ZO.     In  effect  March  8,  1895.] 

Improper  attempt  to  influence  jurors,  referees,  etc. 

95.  Every  person  who  corruptly  attempts  to  influence  a  juror, 
or  any  person  summoned  or  drawn  as  a  juror,  or  chosen  as  an 
arbitrator,  or  umpire,  or  appointed  a  referee,  in  respect  to  his 
verdict  in  or  decision  of  any  cause,  or  proceeding,  pending,  or 
about  to  be  brought  before  him,  either: 

One — By  means  of  any  communication,  oral  or  written,  had 
with  him    except  in  the  regular  course  of  proceedings; 

Two — By  means  of  any  book,  paper,  or  instrument  exhibited, 
otherwise  than  in  the  regular  course  of  proceedings; 

Three — By  means  of  any  threat,  intimidation,  persuasion,  or 
entreaty:   or. 

Four — By  means  of  any  promise,  or  assurance  of  any  pecuniary 
or  other  advantage; 

— is  punishable  by  fine  not  exceeding  uve  thousand  dollars,  or 
by  imprisonment  in  the  state  prison  not  exceeding  five  years. 
[Approved  March  30,  1874;  amendments  1873-4,  p.  424.  In  effect 
July  1.  1874.1 

61    Cal.    135;   64   Cal.    4.'?6;   121   Cal.    389. 

Misconduct   of  jurors,   referees,   etc. 

96.  Every  juror,  or  person  drawn  or  summoned  as  a  juror, 
or  chosen  arbitrator  or  umpire,  or  appointed  referee,  who 
either: 


97-100  PENAL  CODE.  510 

One — Makes  any  promise  or  agreement  to  give  a  verdict  or 
decision   for  or  against  any  party;    or, 

Two — 'Wilfully  and  corruptly  permits  any  communication  to 
be  made  to  him,  or  receives  any  book,  paper,  instrument,  or 
information  relating  to  any  cause  or  matter  pending  before 
him,  except  according  to  the  regular  course  of  proceedings, 
is  punishable  by  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  in  the  state  prison  not  exceeding  five 
years.  [Approved  March  30,  1874;  Amendments  1873-4,  p.  424. 
In  effect  July  1,   1874.] 

64   Cal.    436;    99   Cal.    XiO. 

Justice  or  constable  purchasing  judgment. 

97.  Every  justice  of  the  peace  or  constable  of  the  same 
township  who  purchases  or  is  interested  in  the  purchase  of 
any  judgment  or  part  thereof  on  the  docket  of,  or  on  any 
docket  in  possession  of  such  justice,  is  guilty  of  a  misde- 
meanor. 

Officers  convicted  of,  disfranchised. 

98.  Every  officer  convicted  of  any  crime  defined  in  this 
chapter,  in  addition  to  the  punishment  prescribed,  forfeits  his 
office  and  is  forever  disqualified  from  holding  any  office  in 
this  state. 

Superintendent  of  printing,   interest   in   contracts,  etc. 

99.  The  superintendent  of  state  printing  shall  not,  during 
his  continuance  in  office,  have  any  interest,  either  directly  or 
indirectly,  in  any  contract  in  any  way  connected  with  his 
office  as  superintendent  of  state  printing:  nor  shall  he,  during 
said  period,  be  interested,  either  directly  or  indirectly,  in  any 
state  printing,  binding,  engraving,  lithographing,  or  other  state 
work  of  any  kind  connected  with  his  said  office;  nor  shall  he, 
directly  or  indirectly,  be  interested  in  any  contract  for  furnish- 
ing paper,  or  other  printing  stock  or  material,  to  or  for  use 
in  his  said  office;  and  any  violations  of  these  provisions  shall 
subject  him,  on  conviction  before  a  court  of  competent  juris- 
diction, to  imprisonment  in  the  state  prison  for  a  term  of  not 
less  than  two  years  nor  more  than  five  years,  and  to  a  fine  of 
not  less  than  one  thousand  dollars  nor  more  than  three  thous- 
and dollars,  or  by  both  such  fine  and  imprisonment.  [Amend- 
ment annrnved  March  27,  1895;  Stats.  1895,  p.  235.  In  effect 
March  2'U,  1895.] 

Superintendent  of  printing,  collusion  in  furnishing  materials. 

100.  If  the  said  superintendent  of  state  printing  shall  cor- 
ruptly collude  with  any  person  or  persons  furnishing  paper 
or  materials,  or  bidding  therefore,  or  with  any  other  person 
or  persons,  or  have  any  secret  understanding  with  him  or 
them,  by  himself  or  through  others,  to  defraud  the  state,  or 
by  which  the  state  shall  be  defrauded  or  made  to  sustain  a 
loss,  contrary  to  the  true  intent  and  meaning  of  this  act, 
he  shall,  upon  conviction  thereof,  in  any  court  of  competent 
jurisdiction,  forfeit  his  office,  and  be  subject  to  imprisonment 
in  the  state  prison  for  a  term  of  not  less  than  two  years,  and 
to  a  fine  of  not  less  than  one  thousand  dollars  nor  more  than 
three  thousand  dollars,  or  both  such  fine  and  imprisonment.  [New 
section  approved  April  3,  1876;  Amendments  1875-6,  p.  19.  In 
effect  April  3d,   1876.] 


511  RESCUES ESCAPES.  101-106 

CHAPTER  II. 

RESCUES. 

Sec.    101.    Rescuing  prisoners.  »• 

102.     Retaking  goods  from  custody  of  officer. 

Rescuing  prisoners. 

101.  Every  person  who  rescues  or  attempts  to  rescue,  or 
aids  another  person  in  rescuing  or  attempting  to  rescue,  any 
prisoner  from  any  prison,  or  from  any  officer  or  person  having 
him  in  lawful  custody,  is  punishable  as  follows: 

1.  If  such  prisoner  was  in  custody  upon  a  conviction  of 
felony  punishable  with  death:  by  imprisonment  in  the  state 
prison  not  less  than  one  nor  more  than   fourteen  years; 

2.  If  such  prisonf  >  was  in  custody  upon  a  conviction  of 
any  other  felony:  1;.  imprisonment  in  the  state  prison  not  less 
than  six  months    nor  more  than   five  years; 

3.  If  such  prisoner  was  in  custody  upon  a  charge  of  felony: 
by  a  fine  not  exceeding  one  thousand  dollars  and  imprison- 
ment in  the  county  jail  not  exceeding  two  years; 

4.  If  such  prisoner  was  in  custody  otherwise  than  upon 
a  charge  or  conviction  cf  felony;  by  fine  not  exceeding  five 
hundred  dollars  and  imprisonment  in  the  county  jail  not  ex- 
ceeding six  months. 

Retaking  goods  from  custody  of  officer. 

102.  Every  person  who  wilfully  injures  or  destroys,  or 
takes  or  attempts  to  take,  or  assists  any  person  in  taking  or 
attempting  to  take,  from  the  custody  of  any  officer  or  person, 
any  personal  property  which  such  officer  or  person  has  in 
charge  under  any  process  of  law,  is  guilty  of  a  misdemeanor. 

CHAPTER  III. 
ESCAPES    AND  AIDING  THEREIN. 

Sec.    105.  Escapes   frotn   state   prison. 

106.  Attempt  to  escape  from   state   pr^.-^on. 

107.  Escapes  from   other   than   statf^   prison. 

108.  Officers  suffering  convicts  to  escape. 

109.  Assisting  prisoner   to  escape. 

110.  Carrying  Into   prison   things  u.seful  t  »  rid    ( -.  an  escape. 

111.  Expense   of   trial    for    escape. 

Escapes  from   state  prison. 

105.  Every  prisoner  confined  in  the  state  prison  for  a  term 
less  than  for  life,  who  escapes  therefrom,  is  punishable  by 
imprisonment  in  the  state  prison  for  a  term  equal  in  length 
to  the  term  he  was  serving  at  the  time  of  such  escape;  said 
second  term  of  imprisonment  to  commence  from  the  time  he 
would  otherwise  have  been  discharged  from  said  prison. 
[Amendment  approved  April  16,  1880;  Amendments  1880,  p. 
42.     In   effect  April   16th,    1880.] 

fS   Cal.    ITO;    132   Cal.    34S. 

Attempt  to  escape  from  state  prison, 

,  106.  Every  prisoner  confined  in  the  state  prison  for  a  term 
less  than  for  life,  who  attempts  to  escape  from  such  prison, 
is  guilty  of  a  felony,  and,  on  conviction  thereof,  the  term  of 
imprisonment  therefor  shall  commence  from  the  time  such 
convict  would  otherwise  have  been  discharged  from  said 
prison.  [Amendment  approved  April  16,  1880;  Amendments 
1880,  p.    42.     In  effect  April   16,   1880.] 


107-113  PENAL  CODE.  512 

Escapes  from   other  than   state   prison. 

107.  Every  prisoner  confined  in  any  other  prison  than  the 
state  prison,  who  escapes  or  attempts  to  escape  therefrom,  is 
guilty  of  a  misdemeanor. 

Officers  suffering  convicts  to  escape. 

108.  Every  keeper  of  a  prison,  sheriff,  deputy  sheriff,  con- 
stable, or  jailer,  or  person  employed  as  a  guard,  who  fraudu- 
lently contrives,  procures,  aids,  connives  at,  or  voluntarily 
permits  the  escape  of  any  prisoner  in  custody,  is  punishable 
by  imprisonment  in  the  state  prison  not  exceeding  ten  years, 
and  fine  not  exceeding  ten  thousand  dollars. 

Assisting  prisoners  to  escape. 

109.  Every  person  who  wilfully  assists  any  prisoner  con- 
fined in  any  prison  or  in  the  lawful  custody  of  any  officer  or 
person  to  escape,  or  in  an  attempt  to  escape  from  such  prison 
or  custody,  is  punishable  as  provided  in  section  108  of  this  code. 

Carrying  into  prison  things  useful  to  aid   in  an  escape. 

110.  Every  person  who  carried  or  sends  into  a  prison  any- 
thing useful  to  aid  a  prisoner  in  making  his  escape,  with  in- 
tent thereby  to  facilitate  the  escape  of  any  prisoner  confine^ 
therein,  is  punishable  as  provided  in  section  108  of  this  code. 

Expense  of  trial  for  escape. 

111.  Whenever  a  trial  shall  be  had  of  any  person  under  any 
of  the  provisions  of  sections  one  hundred  and  five  and  one 
hundred  and  six  of  this  code,  and  whenever  a  convict  in  the 
state  prison  shall  be  tried  for  any  crime  committed  therein, 
the  county  clerk  of  the  county  where  such  trial  is  had  shall 
make  out  a  statement  of  all  the  costs  incurred  by  the  county 
for  the  trial  of  such  case,  and  of  guarding  and  keeping  such 
convict,  properly  certified  to  by  a  superior  judge  of  said  coun- 
ty, which  statement  shall  be  sent  to  the  board  of  state  prison 
directors  for  their  approval;  and  after  such  approval,  said 
board  shall  cause  the  amount  of  such  costs  to  be  paid  out  of 
the  money  appropriated  for  the  support  of  the  state  prison 
to  the  county  treasurer  of  the  county  where  such  trial  was 
had.  [New  section  approved  April  6,  1880;  Amendments  1880, 
p.  9.    In  effect  April  6,  1880.] 

CHAPTER  IV. 

FORGING,      STEALING,      MUTILATING,      AND     FALSIFYING 

JUDICIAL  AND   PUBLIC   RECORDS  AND  DOCUMENTS. 

Sec.    113.  Larceny,  destruction,  etc.,  of  records  by  oflBcers. 

114.  Larceny,   destruction,   etc..   of  records  by  otners. 

115.  Offering  false  or  forged   Instruments  to  be  recorded. 

116.  Adding   names,    etc.,    to   jury    lists. 

117.  Falsifying  jury  lists,   etc. 

Larceny,  destruction,  etc.,   of   records  by  officers. 

113.  Every  officer  having  the  custody  of  any  record,  map, 
or  book,  or  of  any  paper  or  proceeding  of  any  court,  filed  or 
deposited  in  any  public  office,  or  placed  in  his  hands  for  any 
purpose,  who  is  guilty  of  stealing,  wilfully  destroying,  mu- 
tilating, defacing,  altering  or  falsifying,  removing  or  secreting 
the  whole  or  any  part  of  such  record,  map,  book,  paper,  or 
proceeding,  or  who  permits  any  other  person  so  to  do,  is  pun- 


513  PERJURY  AJJD  SUBORNATION.  114-118 

ishable  by  imprisonment  in  the  state  prison  not  less  than  one 
nor  more   than   fourteeen   years. 

96   Cal.    174. 

Larceny,  destruction,  etc.,  of  records  by  others. 

114.  Every  person  not  an  officer  such  as  is  referred  to  in 
the  preceding  section,  who  is  guilty  of  any  of  the  acts  specified 
in  that  section,  is  punishable  by  imprisonment  in  the  state 
prison  not  exceeding  five  years,  or  in  a  county  jail  not  exceed- 
Iny  one  year,  or  by  a  fine  not  exceeding  one  hundred  dollars,  or 
by  both. 

96    Cal.    174. 

Offering  false  or  forged  instruments  to  be  recorded. 

115.  Every  person  who  knowingly  procures  or  offers  any 
false  or  forged  instrument  to  be  filed,  registered,  or  recorded 
in  any  public  ofllce  within  this  state,  which  instrument,  if 
genuine,  might  be  filed,  or  registered,  or  recorded  under  any 
law  of  this  state  or  of  the  United  States,  is  guilty  of  felony. 

S4    Cal.    569;    122    Cal.    2. 

Adding  names,  etc.,  to  jury  lists. 

116.  Every  person  who  adds  any  name  to  the  list  of  persons 
selected  to  serve  as  .lurors  for  the  county,  either  by  placing 
the  same  in  the  jury  box  or  otherwise,  or  extracts  any  name 
therefrom,  or  destroys  the  jury  box  or  any  of  the  pieces  of 
paper  containing  the  names  of  jurors,  or  mutilates  or  defaces 
such  names  so  that  the  same  cannot  be  read,  or  changes  such 
names  on  the  pieces  of  paper,  except  in  cases  allowed  by  law, 
is  guilty  of  a  felony.  [Approved  March  30,  1874;  Amendments 
1873-4,  p.  425.     In  effect  July  1,  1874.] 

Falsifying  jury  lists,  etc. 

117.  Every  officer  or  person  required  by  law  to  certify  to  the 
list  of  persons  selected  as  jurors,  who  maliciously,  corruptly, 
or  wilfullv  certifies  to  a  false  or  incorrect  list,  or  a  list  con- 
taining other  names  than  those  selected,  or  who,  being  required 
by  law  to  write  down  the  names  placed  on  the  certified  lists 
on  separate  pieces  of  paper,  does  not  write  down  and  place 
in  the  jurv  box  the  same  names  that  are  on  the  certified  list,  and 
no  more  and  no  less  than  are  on  such  lists,  is  guilty  of  a  felony. 

CHAPTER  V. 
PERJURY  AND  SUBORNATION  OF  PERJURY. 

Sec.    IIP.  Ppriurv  defined. 

119.  Oath  flofined. 

120.  Ojith  of  office. 

121.  Trregnl.Trity  in  fidministerinp:. 

122.  Incompetency   of   M'itness   no    defense.  ' 

12r{.    Knowledsre   of   materiality  of  testimon.v  not   necessar.y. 

124.  Makinp   depositions,    etc.,    when   deemed   complete. 

12.^.  Statement  of  that  which   one  does  not  know  to  be  true. 

12fi.  Viinishment  of  perjury. 

127.  Subornation   of  perjury. 

125.  Procuring  the  execution  of  innocent  persons. 

Perjury  defined. 

118.  Every  person  who,  having  taken  an  oath  that  he  will 
testify,  declare,  depose,  or  certify  truly  before  any  competent 
tribunal,  officer,  or  person,  in  any  of  the  cases  in  which  such 
an   oath   may   by   law   be    administered,   wilfully   and    contrary 


;rimes--33 


119-128  PENAL  CODE.  514 

to  such  oath,    states    as    true    any    material    matter  which  he 
inows  to  be  false,  is  guilty  of  perjury. 

54  Cal.  528;  59  Cal.  374;  59  Cal.  379;  63  Cal.  63; 
;  64  Cal.  2n:  103  Cal.  427;  111  Cal  658;  113  Cal. 

75;  117  Cal.  682;  120  Cal.  132;  122  Cal.  680;  131 
Cal.  260;  133  Cal.  368. 

bath  defined. 

119.  The  term  "oath,"  as  used  in  the  last  section,  includes 
an  affirmation,  and  every  other  mode  authorized  by  law  of  at- 
testing the  truth  of  that  which   is  stated. 

133    Cal.    370. 

Oath  of  office. 

120.  So  much  of  an  oath  of  office  as  relates  to  the  future 
performance  of  official  duties  is  not  such  an  oath  as  is  intended 
by  the  two  preceding  sections. 

Irregularity  in  administering. 

121.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
oath  was  administered  or  taken  in  an  irregular  manner. 

64    Cal.    271;    118    Cal.    80;    131   Cal.    256. 

Incompetency   of  witness   no   defense. 

122.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
accused  was  not  competent  to  give  the  testimony,  deposition,  or 
certificate  of  which  falsehood  is  alleged.  It  is  sufficient  that  he 
did  give  such  testimony  or  make  such  deposition  or  certificate. 

64   Cal.   271. 

Knowledge   of  materiality  of  testimony   not  necessary. 

123.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
accused  did  not  know  the  materiality  of  the  false  statement 
made  by  him;  or  that  it  (jlid  not,  in  fact,  affect  the  proceeding 
in  or  for  which  it  was  made.  It  is  sutficient  that  it  was  material, 
and  might  have  been  used  to  affect  such  proceeding. 

82    Cal.    610. 

Making    depositions,   etc.,   when   deemed   complete. 

124.  The  making  of  a  deposition  or  certificate  is  deemed  to 
be  complete,  within  the  provisions  of  this  chapter,  from  the 
time  when  it  is  delivered  by  the  accused  to  any  other  person, 
with  the  intent  that  it  be  uttered  or  published  as  true. 

IIT  Cal.    682;   118  Cal.   51. 

Statement  of  that  which  one  does  not  know  to  be  true. 

125.  An  unqualified  statement  of  that  which  one  does  not 
know  to-  be  true  is  equivalent  to  a  statement  of  that  which  one 
knows  to  be  false. 

120   Cal.    132. 

Punishment  of  perjury. 

126.  Perjury  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one    nor  more  than  fourteen  years. 

Subornation   of  perjury. 

127.  Every  person  who  wilfully  procures  another  person  to 
commit  perjury  is  guilty  of  subornation  of  perjury,  and  is  pun- 
ishable in  the  same  manner  as  he  would  be  if  personally  guilty 
of  the  perjury  so  procured. 

Procuring  the  execution  of  innocent  persons. 

128.  Every  person  who,  by  wilful  perjury  or  subornation  of 
perjury,  procures  the  conviction  and  execution  of  any  innocent 
person,  is  punishable  by  death. 


515  FALSIFYING  EVIDENCE.  132-138 

CHAPTER  VI. 

FALSIFYING  EVIDENCE. 

Sec.    132.  Offering  false  evidence. 

1.S3.  Deceiving   a   witness. 

134.  Preparinjj:  faLse  evidence. 

135.  Destroying  evidence. 

13(5.    Preventing  or   dissuading  witness  from  attending. 

137.  Bribing   witnesses. 

138.  Receiving   or  offering  to  receive  bribes. 

Offering  false  evidence. 

132.  Every  person  who  upon  any  trial,  proceeding,  inquiry, 
or  investigation  wtiatever,  authorized  or  permitted  by  law,  offers 
In  evidence,  as  genuine  or  true,  any  book,  paper,  document, 
record,  or  other  instrument  in  writing,  knowing  the  same  to  have 
been  forged  or  fraudulently  altered  or  antedated,  is  guilty  of 
felony. 

Deceiving  a  witness. 

133.  Every  person  who  practices  any  fraud  or  deceit,  or  know- 
ingly makes  or  exhibits  any  false  statement,  representation, 
token,  or  writing,  to  any  witness  or  person  about  to  be  called 
as  a  witness  upon  any  trial,  proceeding,  inquiry,  or  investigation 
whatever,  authorized  by  law,  with  intent  to  affect  the  testimony 
of  such  witness,  is  guilty  of  a  misdemeanor. 

Preparing  false  evidence. 

134.  Every  person  guilty  of  preparing  any  false  or  antedated 
book,  paper,  record,  instrument  in  writing,  or  other  matter  or 
thing,  with  intent  to  produce  it,  or  allow  it  to  be  produced  for 
any  fraudulent  or  deceitful  purpose,  as  genuine  or  true,  upon 
any  trial,  proceeding,  or  inquiry  whatever,  authorized  by  law, 
is  guilty  of  felony. 

Destroying  evidence. 

135.  Every  person  who,  knowing  that  any  book,  paper,  record, 
instrument  in  writing,  or  other  matter  or  thing,  is  about  to  be 
produced  in  evidence  upon  any  trial,  inquiry,  or  investigation 
whatever,  authorized  by  law,  wilfully  destroys  or  conceals  the 
same,  with  intent  thereby  to  prevent  it  from  being  produced,  is 
guilty  of  a  misdemeanor. 

Preventing  or  dissuading  witness  from  attending. 

136.  Every  person  who  wilfully  prevent  or  dissuades  any 
person  who  is  or  may  become  a  witness,  from  attending  upon 
any  trial,  proceeding,  or  inquiry,  authorized  by  law,  is  guilty  of 
a  misdemeanor. 

Bribing  witnesses. 

137.  Every  person  who  gives  or  offers,  or  promises  to  give, 
to  any  witness,  or  person  about  to  be  called  as  a  witness,  any 
bribe,  upon  any  understanding  or  agreement  that  the  testimony 
of  such  witness  shall  be  thereby  influenced,  or  who  attempts 
by  any  other  means  fraudulently  to  induce  any  person  to  give 
false  or  withhold  true  testimony,  is  guilty  of  a  felony.  [Ap- 
proved March  30,  1874;  amendments  1873-4,  p.  425.  In  effect 
July  1,  1874.] 

78   Cal.    170. 

Receiving  or  offering  to  receive  bribes. 

138.  Every  person  who  is  a  witness,  or  is  about  to  be  called 
as  such,  who  receives,  or  offers  to  receive,  any  bribe,  upon  any 


142-143  PENAL  CODE.  516 

understanding  that  his  testimony  shall  be  Influenced  thereby, 
or  that  he  will  absent  himself  from  the  trial  or  proceeding  upon 
which  his  testimony  is  required,  is  guilty  of  a  felony.  [Ap- 
proved March  30,  1874;  amendments  1873-4,  p.  425.  In  effect 
July  1.  1874.] 

CHAPTER  VII. 
OTHER  OFFENSES  AGAINST  PUBLIC  JUSTICE. 

Sec.    142.    Officer  refusing  to  arrest  parties  charged  with  crime. 

143.  Pul)lic  administrator,   neglect  or  violation  of  duty   by. 

144.  Receiving  fee  for  services  In  arresting  fugitives. 

■     145.  Delaying  to  take  person  arrested  before  a  magistrate. 

146.  Making  arrests,  etc.,   without  lawful  authority. 

147.  Inhumanity   to   prisoners. 

148.  Resisting  public  offl  cers  in   the  discharge  of  their  duties. 

149.  Assault,  etc.,  by  officers,  under  color  of  authority. 

150.  Refusing  to  aid  officers  in  arrest,  etc. 

153.  Compounding   crimes. 

154.  Debtor  fraudulently  concealing  his  property. 

155.  Defendant  fraudulently  concealing  his  property. 

156.  Fraudulent  pretense  relative  to  birth  of  infant. 

157.  Substltntlng    one    child    for    another. 

158.  Common    barratry    defined.    How    punished. 

159.  Svhat  proof  is  reaulred. 

159i.  Advertising  procuring  of  divorce. 

160.  Misconduct   by   attorneys. 

161.  Buying   demands   or  suit   by   an   attorney. 

162.  Attorneys  forbidden  to  defend  prosecutions  carried  on  by  their 

partners  or   formerly  by  themselves. 

163.  Limitation  of  preceding  section. 

164.  Grand   juror  acting  after  challenge   has   been   allowed. 

165.  Bribing  boards  of  supervisors. 

166.  Criminal  contempts. 

167.  False  certificates  i)y  pul>lic  officers. 

168.  Disclosing  fact  of  indictment  having  been  found. 

169.  Disclosing    what    transpired    before    the   grand    jury 

170.  Maliciously    procuring   search    warrant. 

171.  Fnanthorlzert   communication   with   convict. 

172.  Keeping  liquor  within  two  miles  of  state  prison. 

173.  Importing    foreign    convicts. 

174.  Bringing  Chinese  into  the  state. 

175.  Separate   and   distinct    prosecution. 

176.  Omission  of  duty  by  public  officer. 

177.  Offense  for  which  no  penalty  Is^  prescribed. 
17S.  Officers  of  corporations  not  to  employ  Chinese. 
170.  Corporations  not  to  employ   Chinese. 

180.  County    treasurer    receiving    money    from    private   source. 
180a.  Bringing    narcotics,    intoxicating    ll<]uors,    firearms,    etc..    into 

state    prisons. 

181.  Infringement   of   personal   liberty. 

Officer  refusing  to  arrest  parties  charged  with  crime. 

142.  Every  sheriff,  coroner,  keeper  of  a  jail,  constable,  or 
other  peace  officer,  who  wilfully  refuses  to  receive  or  arrest  any 
person  charged  with  a  criminal  offense,  is  punishable  by  fine 
not  exceeding  five  thousand  dollars,  and  imprisonment  in  the 
county  jail   not  exceeding   five  years. 

Public   administrator,   neglect  or  violation    of   duty   by. 

143.  Every  person  holding  the  office  of  public  administrator, 
who  wilfully  refuses  or  neglects  to  perform  the  duties  thereof, 
or  who  violates  any  provision  of  law  relating  to  his  duties  or 
the  duties  of  his  office,  for  which  some  other  punishment  is  not 
prescribed,  is  punishable  by  fine  not  exceeding  five  thousand 
dollars,  or  imprisonment  in  the  county  jail  not  exceeding  two 
years,  or  both. 


617  OTHER  OFFENSES.  144-153 

Receiving  fee  for  services  in  arrestfng  fugitives. 

144.  Every  person  who  violates  any  of  the  provisions  of  sec- 
tion 1558  is  guilty  of  a  misdemeanor. 

Delaying   to  tal<e   person   arrested   before   a   magistrate. 

145.  Every  public  officer  or  other  person,  having  arrested  any 
person  upon  a  criminal  charge,  who  wilfully  delays  to  take  such 
person  before  a  magistrate  having  jurisdiction,  to  take  his 
examination,  is  guilty  of  a  misdemeanor. 

Making   arrests,   etc.,   without    lawful    authority. 

146.  Every  public  officer,  or  person  pretending  to  be  a  public 
officer,  who,  under  the  pretense  or  color  of  any  process  or  other 
legal  authority,  -arrests  any  person  or  detains  him  against  his 
will,  or  seizes  or  levies  upon  any  property,  or  dispossesses  any 
one  of  any  lands  or  tenements,  without  a  regular  process  or 
other  lawful  authority  therefor,  is  guilty  of  a  misdemeanor. 

Inhumanity  to   prisoners. 

147.  Every  officer  who  is  guilty  of  wilful  inhumanity  or 
oppression  toward  any  prisoner  under  his  care  or  in  his  custody, 
is  punishable  by  fine  not  exceeding  two  thousand  dollars,  and 
by  removal  from  office. 

Resisting   public  officers  in  the  discharge  of  their  duties. 

148.  Every  person  who  wilfully  resists,  delays,  or  obstructs 
any  public  officer,  in  the  discharge  or  attempt  to  discharge  any 
duty  of  his  office,  when  no  other  punishment  is  prescribed,  is 
punishable  by  fine  not  exceeding  five  thousand  dollars,  and 
imprisonment  in  the  county  jail  not  exceeding  five  years. 

59   Cal.    370;    120  Cal.    2S1. 

Assault,  etc.,  by  officers,  under  color  of  authority. 

149.  Every  public  officer  who,  under  color  of  authority,  with- 
out lawful  necessity,  assaults  or  beats  any  person,  is  punish- 
able by  fine  not  exceeding  five  thousand  dollars,  and  imprison- 
ment in  the  county  jail  not  exceeding  five  years. 

Refusing  to  aid   officers  in   arrest,  etc. 

150.  Every  male  person  above  eighteen  years  of  age  who 
neglects  or  refuses  to  join  the  posse  comitatus  or  power  of  the 
county,  by  neglecting  or  refusing  to  aid  and  assist  in  taking  or 
arresting  any  person  against  whom  there  may  be  issued  any 
process,  or  by  neglecting  to  aid  and  assist  in  retaking  any  per- 
son who,  after  being  arrested  or  confined,  may  have  escaped 
from  such  arrest  or  imprisonment,  or  by  neglecting  or  refusing 
to  aid  and  assist  in  preventing  any  breach  of  the  peace,  or  the 
commission  of  any  criminal  offense,  being  thereto  lawfully 
required  by  any  sherilT,  deputy  sheriff,  coroner,  constable,  judge, 
or  justice  of  the  peace,  or  other  officer  concerned  in  the  admin- 
istration of  justice,  is  punishable  by  fine  of  not  less  than  fifty 
nor  more  than  one  thousand  dollars. 

Compounding  crimes. 

153.  Every  person  who,  having  knowledge  of  the  actual  com- 
mission of  a  crime,  takes  money  or  property  of  another,  or  any 
gratuity  or  reward,  or  any  engagement,  or  promise  thereof,  upon 
any  agreement  or  understanding  to  compound  or  conceal  such 
crime,  or  to  abstain  from  any  prosecution  thereof,  or  to  with- 
hold any  evidence  thereof,  except  in  the  cases  provided  for  by 
law  in  which  crimes  may  be  compromised  by  leave  of  court,  is 
punishable  ?.s  follows: 


154-159  PENAL  CODE.  518 

1.  By  imprisonment  in  the  state  prison  not  exceeding  five 
years,  or  in  a  county  jail  not  exceeding  one  year,  where  the 
crime  was  punishable  by  death  or  imprisonment  in  the  state 
prison  for  life; 

2.  By  imprisonment  in  the  state  prison  not  exceeding  three 
years,  or  in  the  county  jail  not  exceeding  six  months,  where  the 
crime  was  punishable  by  imprisonment  in  the  state  prison  for 
any  other  term  than  for  life; 

3.  By  imprisonment  in  the  county  jail  not  exceeding  six 
months,  or  by  fine  not  exceeding  five  hundred  dollars,  where  the 
crime  was  a  misdemeanor. 

103   Cal.    677. 

Debtor  fraudulently  concealing  his  property. 

154.  Every  debtor  who  fraudulently  removes  his  property 
or  effects  out  of  this  state,  or  fraudulently  sells,  conveys,  assigns, 
or  conceals  his  property,  with  intent  to  defraud,  hinder,  or  delay 
his  creditors  of  their  rights,  claims,  or  demands,  is  punishable 
by  imprisonment  in  the  county  jail  not  exceeding  one  year,  or 
by  fine  not  exceeding  five  thousand  dollars,  or  by  both. 

103    Cal.    354. 

Defendant  fraudulently   concealing    his   property. 

155.  Every  person  against  whom  an  action  is  pending,  or 
against  whom  a  judgment  has  been  rendered  for  the  recovery  of 
any  personal  property,  who  fraudulently  conceals,  sells,  or  dis- 
poses of  such  property,  with  intent  to  hinder,  delay,  or  defraud 
the  person  bringing  such  action  or  recovering  such  judgment,  or 
with  such  intent  removes  such  property  beyond  the  limits  of  the 
county  in  which  it  may  be  at  the  time  of  the  commencement  of 
such  action  or  the*  rendering  of  such  judgment,  is  punishable  as 
provided  in  the  preceding  section. 

Fraudulent  pretenses  relative  to  birth  of  infant. 

156.  Every  person  who  fraudulently  produces  an  infant, 
falsely  pretending  it  to  have  been  born  of  any  parent  whose 
child  would  be  entitled  to  inherit  any  real  estate  or  to  receive 
a  share  of  any  personal  estate,  with  intent  to  intercept  the  inher- 
itance of  any  such  real  estate,  or  the  distribution  of  any  such 
personal  estate  from  any  person  lawfully  entitled  thereto,  is 
punishable  by  imprisonment  in  the  state  prison  not  exceeding 
ten  years. 

Substituting   one   child  for  another. 

157.  Every  person  to  whom  an  infant  has  been  confided  for 
nursing,  education,  or  any  other  purpose,  who,  with  intent  to 
deceive  any  parent  or  guardian  of  such  child,  substitutes  or 
produces  to  such  parent  or  guardian  another  child  in  the  place 
of  the  one  so  confided,  is  punishable  by  imprisonment  in  the 
state  prison  not  exceeding  seven  years. 

Common   barratry  defined.      How  punished. 

158.  Common  barratry  is  the  practice  of  exciting  groundless 
judicial  proceedings,  and  is  punishable  by  imprisonment  in  the 
county  jail  not  exceeding  six  months  and  by  fine  not  exceeding 
five  hundred  dollars. 

What  proof  is  required. 

159.  No  person  can  be  convicted  of  common  barratry  except 
upon  pi'oof  that  he  has  excited  suits  or  proceedings  at  law  in 
at  least  three  Instances,  and  with  a  corrupt  or  malicious  intent 
to  vex  and  annoy. 


519  OTHER  0FFKN8ES.  159^-163 

Advertising  procuring  of  divorce. 

1591^.  Whoever  advertises,  prints,  publishes,  distributes,  or 
circulates,  or  causes  to  be  advertised,  printed,  published,  dis- 
tributed, or  circulated,  any  circular,  pamphlet,  card,  handbill, 
advertisement,  printed  paper,  book,  newspaper,  or  notice  of  any 
kind,  offering  to  procure  or  obtain,  or  to  aid  in  procuring  or 
obtaining,  any  divorce,  or  the  severance,  dissolution,  or  nullity 
of  any  marriage,  or  offering  to  engage  or  appear  or  act  as  attor- 
ney, counsel,  or  referee  in  any  suit  for  alimouy  or  divorce,  or  the 
severance,  dissolution,  or  nullity  of  any  marriage,  either  in  this 
state  or  elsewhere,  shall  be  guilty  of  a  misdemeanor.  This  act 
shall  not  apply  to  the  printing  or  publishing  of  any  notice  or 
advertisement  required  or  authorized  by  any  law  of  this  state. 
[Amendment  approved  February  27,  1893;  stats.  1893,  p.  48.  In 
effect  immediately.]  ^ 

Misconduct  by  attorneys. 

160.  Every  attorney  who,  whether  as  attorney  or  as  counsel- 
lor, either: 

1.  Is  guilty  of  any  deceit  or  collusion,  or  consents  to  any 
deceit  or  collusion,  with  intent  to  deceive  the  court  or  any 
party;  or, 

2.  Wilfully  delays  his  client's  suit  with  a  view  to  his  own 
gain;   or, 

3.  Wilfully  receives  any  money  or  allowance  for  or  on 
account  of  any  money  which  he  has  not  laid  out  or  become 
answerable  for; 

— is  guilty  of  a  iftisdemeanor. 

Buying   demands   or   suit   by   an    attorney. 

161.  Every  attorney  who,  either  directly  or  indirectly,  buys 
or  is  interested  in  buying  any  evidence  of  debt  or  thing  in 
action,  with  intent  to  bring  suit  thereon,  is  guilty  of  a  misde- 
meanor. 

68  Cal.\  81;    98   Cal.   524. 

Attorneys  forbidden  to  defend   prosecutions  carried  on  by  their 
partners  or  formerly  by  themselves. 

162.  Every  attorney  who  directly  or  indirectly  advises  in 
relation  to,  or  aids,  or  promotes  the  defense  of  any  action  or 
proceeding  in  any  court,  the  prosecution  of  which  is  carried  on, 
aided,  or  promoted  by  any  person  as  district  attorney  or  other 
public  prosecutor,  with  whom  such  person  is  directly  or  indirect- 
ly connected  as  a  partner;  or  who,  having  himself  prosecuted 
or  in  any  manner  aided  or  promoted  any  action  or  proceeding 
in  any  court  as  district  attorney  or  other  public  prosecutor, 
afterwards,  directly  or  indirectly,  advises  in  relation  to  or 
takes  any  part  in  the  defense  thereof,  as  attorney  or  otherwise, 
or  who  takes  or  receives  any  valuable  consideration  from  or  on 
behalf  of  any  defendant  in  any  such  action,  upon  any  under- 
standing or  agreement  whatever  having  relation  to  the  defense 
thereof,  is  guilty  of  a  misdemeanor,  and  in  addition  to  the  pun- 
ishment prescribed  therefor,  forfeits  his  license  to  practice 
law. 

69  Cal.    59. 

Limitation  of  preceding  section. 

163.  The  preceding  section  does  not  prohibit  an  attorney 
from  defending  himself  in  person,  ss  attorney  or  counsel,  when 
prosecuted,  either  civilly  or  criminally. 


1^4-168  PENAL  CODE.  620 

Grand  Juror  acting   after  challenge   has  been   allowed. 

164.  Every  grand  juror  who,  with  knowledge  that  a  challenge 
interposed  against  him  by  a  defendant  has  been  allowed,  is 
present  at  or  takes  part  or  attempts  to  take  part  in  the  con- 
sideration of  the  charge  against  the  defendant  who  interposed 
the  challenge,  or  the  deliberations  of  the  grand  jury  thereon, 
is  guilty  of  a  misdemeanor. 

Bribing   boards  of  supervisors,  etc. 

165.  Every  person  who  gives  or  offers  a  bribe  to  any  member 
of  any  common  council,  board  of  supervisors,  or  board  of 
trustees  of  any  county,  city,  or  corporation,  with  intent  to  cor- 
ruptly influence  such  member  in  his  action  on  any  matter  or 
subject  pending  before  the  body  of  which  he  is  a  member,  and 
every  member  of  either  of  the  bodies  mentioned  in  this  section 
who  receives  or  oifers  to  receive  any  such  bribe,  is  punishable 
by  imprisonment  in  the  state  prison  for  a  term  not  less  than  one 
nor  more  than  fourteen  years,  and  is  disqualified  from  holding 
any  office  in  this  state. 

93  Cal.    631.110    Cal.    372. 

Criminal  contempts. 

166.  Every  person  guilty  of  any  contempt  of  court,  of  either 
of  the  following  kinds,  is  guilty  of  a  misdemeanor: 

1.  Disorderly,  contemptuous,  or  insolent  behavior  committed 
during  the  sitting  of  any  court  of  justice,  in  immediate  view  and 
presence  of  the  court,  and  directly  tending  to  interrupt  its  pro- 
ceedings or  to  impair  the  respect  due  to  its  authority; 

2.  Behavior  of  the  like  character  committed  in  the  presence 
of  any  referee,  w^hile  actually  engaged  in  any  trial  or  hearing, 
pursuant  to  the  order  of  any  court,  or  in  the  {)resence  of  any 
jury  while  actually  sitting  for  the  trial  of  a  cause,  or  upon  any 
inquest  or  other  proceedings  authorized  by  law: 

3.  Any  breach  of  the  peace,  noise,  or  other  disturbance 
directly  tending  to  interrupt  the  proceedings  of  any  court; 

4.  Wilful  disobedience  of  any  process  or  order  lawfully  issued 
by  any  court; 

5.  Resistance  wilfully  offered  by  any  person  to  the  lawful 
order  or  process  of  any  court; 

6.  The  contumacious  and  unlawful  refusal  of  any  person  to 
be  sworn  as  a  witness;  or,  when  so  sworn,  the  like  refusal  to 
answer  any  material  question; 

7.  The  publication  of  a  false  or  grossly  inaccurate  report  of 
the  proceedings  of  any  court; 

8.  Presenting  to  any  court  having  power  to  pass  sentence  upon 
any  prisoner  under  conviction,  or  to  any  member  of  such  cciirt, 
any  affidavit  or  testimony  or  representation  of  any  kind,  verbal 
or  written,  in  aggravation  or  mitigation  of  the  punishment  to 
be  imposed  upon  such  prisoner,  except  as  proyided  in  this  code. 

64    Cal.    42S:    69    Tal.     543;    S9    Cal.    361. 

False  certificates  by  public  officers. 

167.  Every  public  officer  authorized  by  law  to  make  or  give 
any  certificate  or  other  writing,  who  makes  and  delivers  as  true 
any  such  certificate  or  writing,  containing  statements  which  he 
knows  to  be  false,  is  guilty  of  a  misdemeanor. 

Disclosing  fact  of  indictment  having   been  found. 

168.  Every  grand  juror,  district  attorney,  clerk,  judge,  or 
other  officer,  who,  except  by  issuing  or  in  executing  a  warrant  of 


521  OTHER  0FFEN8ES.  169-175 

arrest,  wilfully  discloses  the  fact  of  a  presentment  or  indict- 
ment having  been  made  for  a  felony,  until  the  defendant  has 
been  arrested,  is  guilty  of  a  misdemeanor. 

63  Cal.    424. 

Disclosing  what  transpired   before   the   grand  jury. 

169.  Every  grand  juror  who,  except  when  required  by  a  court, 
wilfully  discloses  any  evidence  adduced  before  the  grand  jury, 
or  anything  which  he  himself  or  any  other  member  of  the  grand 
jury  may  have  said,  or  in  what  manner  he  or  any  other  grand 
juror  may  have  voted  on  a  matter  before  them,  is  guilty  of  a 
misdemeanor. 

Maliciously   procuring   search   warrant. 

170.  Every  person  who  maliciously  and  without  probable 
cause  procures  a  search  warrant  or  warrant  of  arrest  to  be 
issued  and  executed,  is  guilty  of  a  misdemeanor. 

Unauthorized  communication  with  convict. 

171.  Every  person,  not  authorized  by  law,  who,  without  the 
consent  of  the  warden,  or  other  officer  in  charge  of  the  state 
prison,  communicates  with  any  convict  therein,  or  brings  into  or 
conveys  out  of  the  state  prison  any  letter  or  writing  to  or  from 
any  convict,  is  guilty  of  a  misdemeanor. 

Keeping  liquor  within  two  miles  of  state  prison,  etc. 

172.  Every  person  who,  within  two  miles  of  the  land  belong- 
ing to  this  state,  upon  which  the  state  prison  is  situated,  or 
within  one  mile  of  the  insane  asylum  at  Napa,  or  within  one 
mile  of  the  grounds  belonging  and  adjacent  to  the  University 
of  California,  in  Alameda  county,  or  in  the  state  capitol,  or  within 
the  limits  of  the  grounds  adjacent  and  belonging  thereto,  sells, 
gives  away,  or  exposes  for  saie,  any  vinous  or  alcoholic  liquors, 
is  guilty  of  a  misdemeanor.  [Amendment  approved  April  3,  1876; 
amendments  1875-6,  p.  109.     In  effect  April  3,  1876.] 

61   Cal.    437. 

Importing  foreign   convicts. 

173.  Every  captain,  master  of  a  vessel,  or  other  person,  who 
wilfully  imports,  brings,  or  sends,  or  causes  or  procures  to  be 
brought  or  sent,  into  this  state,  any  person  who  is  a  foreign  con- 
vici  of  any  crime  which,  if  committed  within  this  state,  would 
he  punishable  therein,  (treason  and  misprision  of  treason  except- 
ed) or  who  is  delivered  or  sent  to  him  from  any  prison  or  place 
of  confinement  in  any  place  without  this  state,  is  guilty  of  a 
misdemeanor. 

Bringing   Chinese   into  the  state. 

174.  Every  person  bringing  to  o:-  landing  within  this  state 
any  person  born  either  in  the  empire  of  China  or  Japan,  or  the 
islands  adjacent  to  the  empire  of  China,  without  first  presenting 
to  the  commissioner  of  immigration  evidence  satisfactory  to 
such  commissioner  that  such  person  desires  voluntarily  to  come 
into  this  state  and  is  a  person  of  good  character,  and  obtaining 
from  such  cqmmissioner  a  permit  describing  such  person  and 
authorizing  the  landing,  is  punishable  by  a  fine  of  not  less  than 
one  nor  more  than  five  thousand  dollars,  or  by  imprisonment  in 
the  county  jail  not  less  than  two  nor  more  than  twelve  months. 

Separate  and  distinct  prosecution. 

175.  Every  individual  person  of  the  classes  referred  to  in 
the   two  preceding  sections,   brought  to   or  landed   within  this 


176-180  PENAL  CODE.  522 

state  contrary  to  the  provisions  of  such  sections,  renders  the 
person  bringing  or  landing  liable  to  a  separate  prosecution  and 
penalty. 

Omission   of  duty  by  public  officer. 

176.  Every  wilful  omission  to  perform  any  duty  enjoined  by 
law  upon  any  public  officer,  or  person  holding  any  public  trust 
or  employment,  where  no  special  provision  shall  have  been 
made  for  the  punishment  of  such  delinquency,  is  punishable 
as  a  misdemeanor. 

47    Cal.    129;    84    Cal.    310. 

Offense  for  which  no  penalty  is  prescribed. 

177.  When  an  act  or  omission  is  declared  by  a  statute  to  be  a 
public  offense,  and  no  penalty  for  the  offense  is  prescribed  in 
any  statute,  the  act  or  omission  is  punishable  as  a  misdemeanor. 
[Amendment  approved  March  30,  1874;  amendments  1873-4,  p. 
426.     In  effect  July  1,  1874.] 

62    Cal.    310. 

Officers  of  corporations  not  to  employ  Chinese. 

178.  Any  officer,  director,  manager,  member,  stockholder, 
clerk,  agent,  servant,  attorney,  employee,  assignee,  or  con- 
tractor of  any  corporation  now  existing,  or  hereafter  formed 
under  the  laws  of  this  state,  who  shall  employ,  in  any  manner 
or  capacity,  upon  any  work  or  business  of  such  corporation  any 
Chinese  or  Mongolian,  is  guilty  of  a  misdemeanor,  and  is  pun- 
ishable by  a  fine  of  not  less  than  one  hundred  nor  more  than 
one  thousand  dollars,  or  by  imprisonment  in  the  county  jail 
of  not  less  than  fifty  nor  more  than  five  hundred  days,  or  by 
both  such  fine  and  imprisonment;  provided,  that  no  director  of 
a  corporation  shall  be  deemed  guilty  under  this  section  who 
refuses  to  assent  to  such  employment,  and  has  such  dissent 
recorded  in  the  minutes  of  the  board  of  directors. 

1.  Every  person  who.  having  been  convicted  for  violating  the 
provisions  of  this  section,  commits  any  subsequent  violation 
thereof  after  such  conviction,  is  punishable  as  foiiows:  ■ 

2.  For  each  subsequent  conviction  such  person  shall  be  fined 
not  less  than  five  hundred  nor  more  than  five  thousand  dollars, 
or  by  imprisonment  not  less  than  two  hundred  and  fifty  days 
nor  more  than  two  years,  or  by  both  such  fine  and  imprison- 
ment. [New  section  approved  February  13,  li>60;  amendments 
1880,  p.  1.     In  effect  February  13,  1880.] 

Corporations  not  to  employ  Chinese. 

179.  Any  corporation  now  existing,  or  hereafter  formed  under 
the  laws  of  this  state,  that  shall  employ,  directly  or  indirectly, 
in  any  capacity,  any  Chinese  or  Mongolian,  shall  be  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  for  the  first 
offense  be  fined  not  less  than  five  hundred  nor  more  than  five 
thousand  dollars,  and  upon  the  second  conviction  shall,  in 
addition  to  said  penalty,  forfeit  its  charter  and  franchise,  and. 
all  its  corporate  rights  and  privileges,  and  it  shall  be  the  duty 
of  the  attorney  general  to  tak'e  the  necessary  steps  to  enforce 
such  forfeiture.  [Amendment  approved  February  13.  1880; 
amendments  1880,  p.  2.     In  effect  February  13,  1880.] 

County  treasurer   receiving    money  from   private  source. 

180.  Any  county  treasurer  who  shall  accept,  or  allow,  any 
deposit  in  the  county  treasury  of  moneys  from  any  private  and 
unofficial   source,   is  guilty   of  misdemeanor,  and   shall   be  pun- 


523  CONSPIRACY.  180a-182 

ished  by  imprisonment  in  the  county  jail  for  not  less  than  six 
months  nor  more  than  one  year,  or  by  a  fine  of  not  less  than 
five  hundred  dollars  and  not  more  than  five  thousand  dollars, 
or  both  such  fine  and  imprisonment,  in  the  discretion  of  the 
court,  and,  in  addition  thereto,  shall  forfeit  his  office.  [New 
section  added  March  3,  1897;  stats.  1897,  p.  56.] 

Bringing  narcotics,  intoxicating  liquors,  firearms,  etc.,  into 
state  prisons. 
180a.  Any  person,  not  authorized  by  law,  who  brings  into 
either  of  the  state  prisons  of  the  state  of  California,  or  any 
reformatories  therein,  or  within  the  grounds  of  such  institu- 
tions, or  who  brings  into  or  passes  into  any  jail  within  the 
state  of  California,  any  opium,  morphine,  cocaine,  or  other 
narcotics,  or  any  intoxicating  liquors  of  any  kind  whatever,  or 
firearms,  weapons,  or  explosives  of  any  kind,  is  guiUy  of  a 
felony,  and,  upon  conviction  thereof,  shall  be  punished  by 
imprisonment  in  the  state  prison  for  a  term  not  less  than  one 
nor  more  than  five  years,  and  shall  be  disqualified  from  hold- 
ing any  stkte  office  or  position  in  the  employ  of  this  state. 
[Stats.  1901,  p.  107.] 

Infringement  of    personal    liberty. 

181.  Every  person  who  hblds,  or  attempts  to  hold,  any  per- 
son in  involuntary  servitude,  or  assumes,  or  attempts  to  assume, 
rights  of  ownership  over  any  person,  or  who  sells,  or  attempts 
to  sell,  any  person  to  anoth,er,  or  receives  money  or  anything 
of  value,  in  consideration  of  'placing  any  person  in  the  custody, 
or  under  the  power  or  control  of  another,  or  who  buys,  or 
attempts  to  buy,  any  person,  or  pays  money,  or  delivers  any- 
thing of  value,  to  another,  in  consideration  of  having  any  per- 
son placed  in  his  custody,  or  under  his  power  or  control,  or 
who  knowingly  aids  or  assists  in  any  manner  any  one  thus 
offending,  is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  one  nor  more  than  ten  years.  [Stats.  1901,  p. 
330.1 

CHAPTER  VIII. 

CONSPIRACY. 

Sec.    182.  Criminal  conspiracy  defined  and  punishment  fixed. 

183.  No   other  conspiracies   punishable  criminally. 

184.  Overt   act,    when   necessary. 

185.  Wearing   mask   or  disguise. 

Criminal   conspiracy  defined  and    punishment  fixed. 

182.  If  two  or  more  persons  conspire: 
One — To  commit  any  crime; 

Two — Falsely  and  maliciously  to  indict  another  for  any  crime, 
or  to  procure  another  to  be  charged  or  arrested  for  any  crime; 

Three — Falsely  to  move  or  maintain  any  suit,  action,  or  pro- 
ceeding; 

Four — To  cheat  and  defraud  any  person  of  any  property,  by  any 
means  which  are  in  themselves  criminal,  or  to  obtain  money 
or  property  by  false  pretenses;  or. 

Five — To  commit  any  act  injurious  to  the  public  health,  to  pub- 
lic morals,  or  for  the  perversion  or  obstruction  of  justice,  or  due 
administration  of  the  laws; 

— they  are  punishable  by  imprisonment  in  the  county  jail  not 


183-186  PENAL  CODB.  524 

exceeding  one  year,  or  by  fine  not  exceeding  one  thousand  dol- 
lars, or  both.  [Amendment  approved  March  30,  1874;  amenu- 
ments  1873-4,  p.  426.     In  effect  July  1,  1874.] 

84    Cal.     472;     105    Cal.     263. 
118    Cal.    460. 

No  other  conspiracies  punishable  criminally. 

183.  No  conspiracies,  other  than  those  enumerated  in  the 
preceding  section,  are  punishable  criminally. 

Overt   act,    when    necessary. 

184.  No  agreement,  except  to  commit  a  felony  upon  the  per- 
son of  another,  or  to  commit  arson,  or  burglary,  amounts  to  a 
conspiracy,  unless  some  act,  beside  such  agreement,  be  done  to 
effect  the  object  thereof,  by  one  or  more  of  the  parties  to  such 
agreement. 

103   Cal.    264. 

Wearing*  mask  or  disguise. 

185.  it  shall  be  unlawful  for  any  person  to  wear  any  mask, 
false  whiskers,  or  any  personal  disguise  (whether  complete  or 
partial)  for  the  purpose  of: 

One — Evading  or  escaping  discovery,  recognition,  or  identifica- 
tion in  the  commission  of  any  public  offense. 

Two — Concealment,  flight,  or  escape,  when  charged  with,  ar- 
rested for,  or  convicted  of,  any  public  offense.  Any  person  violating 
any  of  the  provisions  of  this  section  shall  be  deemed  guilty  of  a 
misdemeanor.  [New  section  approved  March  30,  1874;  amend- 
ments 1873-4,  p.  426.     In  effect  July  1,  1874.] 


52-5  HaMiciDE.  187-190 

TITLE  VIII. 
OP  CRIMES  AGAINST  THE  PERSON. 


other  than 


Chapter  I. 

Homicide. 

II. 

Mayhem. 

III. 

Kidnapping. 

IV. 

Robbery. 

V. 

Attempts  to  kill. 

VI. 

Assaults  with  intent  to  commit  felony, 

assaults  with  intent  to  murder. 

VII. 

Duels  and  challenges. 

VIII. 

False  imprisonment. 

IX. 

Assault  and  battery. 

X. 

Libel. 

CHAPTER  I. 
HOMICIDE. 

Sec.    187.    Murder  defined. 

188.  Malice  defined. 

189.  Degrees  of  murder. 

190.  Punishment    of    murder. 

191.  Petit  treason  abolished. 

192.  Manslaughter — voluntary   and   involuntary. 

193.  Punishment  of  manslaughter. 

394.  Deceased  must  die  within  a  year  and   a   day. 

195.  Excusable  homicide: 

196.  Justifiable   homicide  by   public  ofllcers. 

197.  Justifiable  homicide  by  other  persons. 

198.  Bare  fear  not  to  justify  killing. 

199.  Justifiable  and  excusable  homicide  not  punishable. 

Murder  defined. 

187.  Murder  is  the  unlawful  killing  of  a  human  being,  with 
malice  aforethought. 

58  Cal  26S;  63  Cal.  28;  63  Cal.  166;  63  Cal.  424; 
65  Cal.  212;  65  Cal.  233;  68  Cal.  362;  86  Cal.  240; 
99  Cal.  2;  122  Cal.  141. 

Malice  defined. 

188.  Such  malice  may  be  express  or  implied.  It  is  express 
when  there  Is  manifested  a  deliberate  intention  unlawfully  to 
take  away  the  life  of  a  fellow-creature.  It  is  implied,  when  nO' 
considerable  provocation  appears,  or  when  the  circumstances 
attending  the  killing  show  an  abandoned  and  malignant  heart. 

58  Cal.  268;  65  Cal.  235;  71  Cal.  3;  76  Cal  285; 
93   Cal.   566;   120  Cal.    202;   122  Cal.    141;    123  Cal. 

30G. 

Degrees  of  murder. 

189.  All  murder  which  is  perpetrated  by  means  of  poison, 
or  lying  in  wait,  torture,  or  by  any  other  kind  of  wilful,  deliber- 
ate, and  premeditated  killing,  or  which  is  committed  in  the  per-  • 
petration  or  attempt  to  perpetrate  arson,  rape,  robbery,  burglary, 
or  mayhem,  is  murder  of  the  first  degree;  and  all  other  kinds 
of  murders  are  of  the  second  degree.  [Amendment  approved 
March  30,  1874;  amendments  1873-4,  p.  427.  In  effect  July  1, 
1874.] 

57  Cal.  94;  58  Cal.  268;  59  Cal.  601;  63  Cal.  4M; 
71  Cal.  6:  76  Cal.  285;  80  Cal.  125;  81  Cal.  567; 
86  Cal.  240;  88  Cal.  271;  99  Cal.  3;  121  Cal.  347; 
122  Cal.  141. 

Punishment  of  murder. 

190.  Every  person  guilty  of  murder  in  the  first  degree  shall 
suffer  death,  or  confinement  in  the  state  prison  for  life,  at  the 


191-196  PENAL  CODE.  526 

discretion  of  the  jury  trying  the  same;  or,  upon  a  plea  of  guilty, 
the  court  shall  determine  the  same;  and  every  person  guilty 
of  murder  in  the  second  degree  is  punishable  by  imprisonment 
in  the  state  prison  not  less  than  ten  years.  [Amendment  ap- 
proved March  28,  1874;  amendments  1873-4,  p.  457.  In  effect 
March  28,  1874.] 

49  Cal.  178;  49  Cal.  184;  58  Cal.  268;  59  Cal.  357; 
59  Cal.  432;  67  Cal.  114;  69  Cal.  176;  90  Cal.  197; 
■  105  Cal.  495;  129  Cal.  551. 

Petit  treason  abolished. 

191.  The  rules  of  the  common 'law,  distinguishing  the  killing 
of  a  master  by  his  servant,  and  of  a  husband  by  his  wife,  as 
petit  treason,  are  abolished,  and  these  offenses  are  homicides, 
punishable  in  the  manner  prescribed  by  this  chapter. 

IVIanslaughter — voluntary  and   Involuntary. 

192.  Manslaughter  is  the  unlawful  killing  of  a  human  being, 
without  malice.     It  is  of  two  kinds: 

1.  Voluntary — upon  a  sudden  quarrel  or  heat  of  passion. 

2.  Involuntary — in  the  commission  of  an  unlawful  act,  not 
amounting  to  felony;  or  in  the  commission  of  a  lawful  act  which 
might  produce  death,  in  an  unlawful  manner,  or  without  due 
caution  and  circumspection. 

58  Cal.   268;  65  Cal.  212;  72  Cal.  620;  SO  Cal.  125; 
118   Cal.   156;    129   Cal.    552. 

Punishment   of  manslaughter. 

193.  Manslaughter  is  punishable  by  imprisonment  in  the 
state  prison  not  exceeding  ten  years. 

Deceased  must  die  within  a  year  and  a  day. 

194.  To  make  the  killing  either  murder  or  manslaughter,  it 
is  requisite  that  the  party  die  within  a  year  and  a  day  after 
the  stroke  received  or  the  cause  of  death  administered;  In  the 
computation  of  which  the  whole  of  the  day  on  which  the  act 
was  done  shall  be  reckoned  the  first. 

58  Cal.  268. 

Excusable  homicide. 

195.  Homicide  is  excusable  in  the  following  cases: 

1.  When  committed  by  accident  and  misfortune,  in  lawfully 
correcting  a  child  or  servant,  or  in  doing  any  other  lawful  act 
by  lawful  means,  with  usual  and  ordinary  caution,  and  without 
any  unlawful  intent. 

2.  When  committed  by  accident  and  misfortune,  in  the  heat 
of  passion,  upon  any  sudden  and  sufficient  provocation,  or  upon 
a  sudden  combat,  when  no  undue  advantage  is  taken,  nor  any 
dangerous  weapon  used,  and  when  the  killing  is  not  do«ie  In  a 
cruel  pr  unusual  manner. 

49  Cal.   428;  58  Cal.    2«S;   80  Cal.   185. 

Justifiable  homicide  by  public  officers. 

196.  Homicide  is  justifiable  when  committed  by  public  offi- 
cers and  those  acting  by  their  command  in  their  aid  and  assist- 
ance, either — 

1.  In  obediencei  to  any  judgment  of  a  competent  court;   or, 

2.  When  necessarily  committed  in  overcoming  actual  resist- 
ance to  the  execution  of  some  legal  process,  or  in  the  discharge 
of  any  other  legal  duty;  or, 

3.  When  necessarily  committed  in  retaking  felons  who  have 
been  rescued  or  have  escaped,  or  when  necessarily  committed  in 


627  HOMICIDE — MAYHEM.  197-203 

arresting  persons  charged  with  felony,  and  who  are  fleeing  from 
justice  or  resisting  such  arrest. 

5S    Cal.    36S. 

Justifiable  homicide  by  other   persons. 

197.  Homicide  is  also  justifiable  when  committed  by  any 
person  in  either  of  the  following  cases: 

1.  When  resisting  any  attempt  to  murder  any  person,  or  to 
commit  a  felony,  or  to  do  some  great  bodily  injury  upon  any 
person;   or, 

2.  When  committed  in  defense  of  habitation,  property,  or 
person,  against  one  who  manifestly  intends  or  endeavors,  by 
violence  or  surprise,  to  commit  a  felony,  or  against  one  who 
manifestly  intends  and  endeavors,  in  a  violent,  riotous  or 
tumultuous  manner,  to  enter  the  habitation  of  another  for  the 
purpose  of  offering  violence   to  any  person  therein;    or, 

3.  When  committed  in  the  lawful  defense  of  such  person,  or 
of  a  wife  or  husband,  parent,  child,  master,  mistress,  or  ser- 
vant of  such  person,  when  there  is  reasonable  ground  to  appre- 
hend a  design  to  commit  a  felony  or  to  do  some  great  bodily 
injury,  and  imminent  danger  of  such  design  being  accomplished; 
but  such  person,  or  the  person  in  whose  behalf  the  defense  was 
made,  if  he  was  the  assailant  or  engaged  in  mortal  combat,  must 
really  and  in  good  faith  have  endeavored  to  decline  any  further 
struggle  before  the  homicide  was  committed;  or, 

4.  When  necessarily  committed  in  attempting,  by  lawful 
ways  and  means,  to  apprehend  any  person  for  any  felony  com-, 
mitted,  or  in  lawfully  suppressisg  any  riot,  or  in  lawfully  keeping 
and  preserving  the  peace. 

58  Cal.  250;  58  Cal.  26S;  60  Cal.  74;  61  Cal.  187; 

61  Cal.  546;  65  Cal.  133;  67  Cal.  649;  70  Cal.  523; 
74  Cal.  645;  82  Cal.  40;  89  Cal.  170;  93  Cal.  488; 
106  Cal.  631;  109  Cal.  461;  111  Cal.  626;  117 
Cal.  ISO;  118  Cal.  269. 

118  Cal.  443;  133  Cal.  160. 

Bare  fear  not  to  justify  killing. 

198.  A  bare  fear  of  the  commission  of  any  of  the  offenses 
mentioned  in  subdivisions  2  and  3  of  the  preceding  sec- 
tion, to  prevent  which  homicide  may  be  lawfully  committed,  is 
not  sufficient  to  justify  it.  But  the  circumstances  must  be  suffi- 
cient to  excite  the  fears  of  a  reasonable  person,  and  the  party 
killing  must  have  acted  under  the  influence  of  such  fears  alone. 

6,S  Cal.  268;  61  Cal.  546;  65  Cal.  223;  118  Cal. 
443. 

Justifiable  and   excusable   homicide   not  punishable. 

199.  The  homicide  appearing  to  be  justifiable  or  excusable, 
the  person  indicted  must,  upon  his  trial,  be  fully  acquitted  and 
discharged. 

CHAPTER  II. 

MAYHEM. 
Sw.    203.    Ma.vhem;  defined. 

204.    Mayhem,  how  punished. 

Mayhem   defined. 

203.  Every  person  who  unlawfully  and  maliciously  deprives 
a  human  being  of  a  member  of  his  body,  or  disables,  disfigures, 
or  renders  it  useless,  or  cuts  or  disables  the  tongue,  or  puts  out 
an  eye,  or  slits  the  nose,  ear,  or  lip,  is  guilty  of  mayhem. 
[Amendment  approved  March  30,  1874;  amendments  1873-4,  p. 
427.     In  effect  July  1,  1874.] 

62  Cal.   542;   93  Cal.   565;   105  Cal.   673. 


204-212  PENAL  CODE.  528 

Mayhem,   how  punishable. 

204.     Mayhem    is    punishable    by    imprisonment   in    the   state- 
prison  not  exceeding  fourteen  years. 

CHAPTER  III. 
KIDNAPPING. 

Sec.    207.    Kidnapping  defined. 

2()8.    Punishment  of  kidnapping. 
209.    Penalty   for  kidnapping. 

Kidnapping  defined. 

207.  Every  person  who  forcibly  steals,  takes,  or  arrests  any 
person  in  this  state,  and  carries  him  into  another  country,  state, 
or  county,  or  who  forcibly  takes  or  arrests  any  person,  with  a 
design  to  take  him  out  of  this  state,  without  having  established 
a  claim  according  to  the  laws  of  the  United  States  or  of  this 
state,  or  who  hires,  persuades,  entices,  decoys,  or  seduces  by 
false  promises,  misrepresentations,  or  the  like,  any  person  to 
go  out  of  this  state,  or  to  be  taken  or  removed  therefrom,  for 
the  purpose  and  with  the  intent  to  sell  such  person  into  slavery 
or  involuntary  servitude,  or  otherwise  to  employ  him  for  his 
own  use,  or  to  the  use  of  another,  without  the  free  will  and 
consent  of  such  persuaded  person,  is  guilty  of  kidnapping. 

h5    Cal.    310;    &9    Cal.    150. 

Penalty  for  kidnapping. 

208.  Kidnapping  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one  nor  more  than  ten  years. 

Punishment  of  kidnapping. 

209.  Every  person  who  maliciously,  forcibly,  or  fraudulently 
takes  or  entices  away  any  person  with  intent  to  restrain  such 
person  and  thereby  to  commit  extortion  or  robbery,  or  exact 
from  the  relatives  or  friends  of  such  person  any  money  or 
valuable  thing,  is  guilty  of  a  felony,  and  shall  be  punished 
therefor  by  imprisonment  in  the  state's  prison  for  life,  or  any 
number  of  years  not  less  than  ten.     [Stats.  1901,  p.  98.1 

CHAPTER  IV. 
ROBBERY. 

Sec.    211.    Robliery  defined. 

212.  What   fear  may  be   an  element  in  rolilicry. 

213.  Punishment    of    robbery. 

Robbery    defined. 

211.  Robbery  is  the  felonious  taking  of  personal  property 
in  the  possession  of  another,  from  his  person  or  immediate 
presence,  and  against  his  will,  accomplished  by  means  of  force 
or  fear. 

53  Cal.  59:  56  Cal.  80;  59  Cal.  438;  67  Cal.  422; 
75  Cal.  99;  80  Cal.  207;  100  Cal.  439;  116  Cal. 
586;  118  Cal.  26. 

What  fear  may  be  an  element  in  robbery. 

212.  The  fear  mentioned  in  the  last  section  may  be  either: 
One — The  fear  of  an  unlawful  injury  to  the  person  or  property 

of  the  person   robbed,  or  of  any  relative  of  his  or  member  of 
his  family;  or. 

Two — The  fear  of  an  immediate  and  unlawful  injury  to  the 
person  or  property  of  any  one  in  the  company  of  the  person 


529  ATTEMPTS  TO  KILL.  213-220 

robbed  at  the  time  of  the  robbery.  [Amendment  approved, 
Marcn  30.  1874;  amendments  1873-4,  p.  427.  In  effect  July  1,. 
1874.] 

Punishment  of  robbery. 

213.  Robbery  is  punishable  by  imprisonment  in  the  state- 
prison  not  less  than  one  year. 

39  Cal.   441;  60  Cal.   110;   61  Cal.  137;  69  Cal.  605; 
118   Cal.   93. 

CHAPTER  V. 
ATTEMPTS  TO  KILL. 

Sec.    216.    Aduiiulstering   poison. 

217.  A.ssault   with   intent   to  oonimit   murder. 

218.  Train-wrecliing,  punishment  for. 

Administering   poison. 

216.  Every  person  who,  with  intent  to  kill,  administers,  or 
causes  or  procures  to  be  administered,  to  another,  any  poison  or 
other  noxious  or  destructive  substance  or  liquid,  but  by  which 
death  is  not  caused,  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  ten  years. 

53  Cal.   148;   54  Cal.   54. 

Assault  with   Intent  to  commit   murder. 

217.  Every  person  who  assaults  another  with  intent  to  com- 
mit murder,  is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  one  nor  more  than  fourteen  years. 

80    Cal.    44;    99    Cal.    232. 

Train-wrecking,   punishment  for. 

218.  Every  person  who  shall  unlawfully  throw  out  a  switch, 
remove  a  rail,  or  place  any  obstruction  on  any  railroad  in  the 
state  of  California,  with  the  intention  of  derailing  any  passenger, 
freight,  or  other  train,  or  who  shall  unlawfully  board  any  pas- 
senger train  with  the  intention  of  robbing  the  same,  or  who  shall 
unlawfully  place  any  dynamite  or  other  explosive  material, 
or  any  other  obstruction,  on  the  track  of  any  railroad 
in  the  state  of  California,  with  the  intention  of  blow- 
ing up  or  derailing  any  passenger,  freight,  or  other  train, 
or  who  shall  unlawfully  set  fire  to  any  railroad  bridge  or  trestle, 
over  which  any  passenger,  freight,  or  other  train  must  pass, 
with  the  intent  of  wrecking  said  train,  upon  conviction  shall  be 
adjudged  guilty  of  felony,  and  shall  be  punished  with  death  or 
imprisonment  in  the  state  prison  for  life,  at  the  option  of  the 
jury  trying  the  case.  [New  section  added  March  31,  1891; 
stats.  1891,  p.  283.     In  effect  immediately.] 

Ill    Cal.    244. 

CHAPTER  VI. 

ASSAULTS    WITH   INTENT    TO    COMMIT   FELONY,    OTHER 

THAN  ASSAULTS  WITH  INTENT  TO  MURDER. 

Sec.    220.    Assault  ■with   intent  to  commit  rane. 

221.  Other  assaults. 

222.  Administering  stupefying  drugs. 

Assault  with  intent  to  commit  rape. 

220.  Every  person  who  assaults  another  with  intent  to  com- 
mit rape,  the  infamous  crime  against  nature,  maykem,  robbery. 


CRIMES  --34 


221-228  PENAL  CODE.  530 

or  grand   larceny,  is   punishable  by  imprisonment  in  the  state 
prison    not  less  than  one  nor  more'  than  fourteen  years. 

53  cal.  529;  65  Cal.  299;  93  Cal.  583;  98  Cal.  128; 
'  106  Cal.  214;  109  Cal.  277;  118  Cal.  26;  119  Cal. 

386. 

<^ther  assaults. 

221.  Every  person  who  is  guilty  of  an  assault,  with  intent  to 
commit  any  felony,  except  an  assault  with  intent  to  commit 
murder,  the  punishment  for  which  assault  is  not  prescribed  by 
the  preceding  section,  is  punishable  by  imprisonment  in  the' 
state  prison  not  exceeding  five  years,  or  in  a  county  jail  not 
exceeding  one  year,  or  by  fine  not  exceeding  five  hundred  dol- 
lars, or  bv  both. 

61   Cal.    622. 

Administering   stupefying   drugs. 

222.  Every  person  guilty  of  administering  to  another  any 
chloroform,  ether,  laudanum,  or  other  narcotic,  anaesthetic,  or 
intoxicating  agent,  with  intent  thereby  to  enable  or  assist  him- 
self or  any  other  person  to  commit  a  felony,  is  guilty  of  felony. 

CHAPTER  VII. 
DUELS  AND  CHALLENGES. 

Sec.    225.  Dnel   defined. 

226.  Punisiiment  for  fighting  a  duel,  when  death  ensues. 

227.  Punishment  for  flgtiting  a  duel,  although  death  does  not  ensue. 

228.  Persons   fighting  duels,   etc.,   disaualifled   from   holding  office, 

etc. 

229.  Posting  for  not  fighting. 

230.  Duties  of  oflicers  to  prevent  duels. 

231.  Leaving  the  state  with  intent  to  evade  laws  against  dueling. 

232.  Witness'  privilege. 

Duel  defined. 

225.  A  duel  is  any  combat  with  deadly  weapons,  fought 
between  two  or  more  persons,  by  previous  agreement  or  upon  a 
previous  quarrel. 

Punishment  for  fighting  a  duel,  when  death  ensues. 

226.  Every  person  guilty  of  fighting  any  duel,  from  which 
death  ensues  within  a  year  and  a  day,  is  punishable  by  imprison- 
ment in  the  state  prison  not  less  than  one  nor  more  than  seven 
years. 

Punishment  for  fighting  a  duel,  although  death  does  not  ensue. 

227.  Every  person  who  fights  a  duel,  or  who  sends  or  accepts 
a  challenge  to  fight  a  duel,  is  punishable  by  imprisonment  in 
the  state  prison  or  in  the  county  jail  not  exceeding  one  year. 
[Amendment  approved  March  30,  1874;  amendments  1873-4,  p. 
428.     In  effect  July  1,  1874.] 

Persons  fighting  duels,  etc.,  disqualified  from  holding  office,  etc. 

228.  Any  citizen  of  this  state  who  shall  fight  a  duel  with 
deadly  weapons,  or  send  or  accept  a  challenge  to  fight  a  duel 
with  deadly  weapons,  either  within  this  state  or  out  of  it,  or  who 
shall  act  as  second,  or  knowingly  aid  or  assist  in  any  manner 
those  thus  offetfding,  shall  not  be  allowed  to  hold  any  oflBce  of 
profit,  or  to  enjoy  the  right  of  suffrage,  and  shall  be  d,eclared 
so  disqualified  in  the  judgment,  upon  conviction.  [Amendment 
approved  April  6,  1880;  amendments  1880,  p.  8.  In  effect  April 
6,  1880.] 


631  FA  i^E  Imprisonment.  229-237 

Posting  for  not  fighting. 

229.  Every  person  who  posts  or  publishes  another  for  not 
fighting  a  duel,  or  for  not  sending  or  accepting  a  challenge  to 
fight  a  duel,  or  who  uses  g,ny  reproachful  or  contemptuous 
language,  verbal,  written,  or  printed,  to  or  concerning  another, 
for  not  sending  or  accepting  a  challenge  to  fight  a  duel,  or  with 
intent  to  provoke  a  duel,  is  guilty  of  a  misdemeanor. 

Duties  of  officers  to  prevent  duels. 

230.  Every  judge,  justice  of  the  peace,  sheriff,  or  other  officer 
bound  to  preserve  the  public  peace,  who  has  knowledge  of  the 
intention  on  the  part  of  any  persons  to  fight  a  duel,  and  who 
does  not  exert  his  official  authority  to  arrest  the  party  and 
prevent  the  duel,  is  punishable  by  fine  not  exceeding  one 
thousand  dollars. 

Leaving  tlie  state  witii   intent  to  evade  laws  against  dueling. 

231.  Every  person  who  leaves  this  state  with  intent  to  evade 
any  of  the  provisions  of  this  chapter,  and  to  commit  any  act 
out  of  this  state  such  as  is  prohibited  by  this  chapter,  and  who 
does  any  act,  although  out  of  this  state,  which  would  be  punish- 
able by  such  provisions  if  committed  within  this  state,  is  pun- 
ishable in  the  same  manner  as  he  would  have  been  in  case  such 
act  had  been  committed  within  this  state. 

Witness'  privilege. 

232.  No  person  shall  be  excused  from  testifying  or  answer- 
ing any  question  upon  any  investigation  or  trial  for  a  violation 
of  either  of  the  provisions  of  this  chapter,  upon  the  ground  that 
his  testimony  might  tend  to  convict  him  of  a  crime.  But  no 
evidence  given  upon  any  examination  of  a  person  so  testifying 
shall  be  received  against  him  in  any  criminal  prosecution  or 
proceeding. 

^  CHAPTER  VIII. 

FALSE  IMPRISONMENT. 

Sec.    236.    False  imprisonment  defined. 

237.    False   Imprisonment,   punishment  for. 

False   imprisonment  defined. 

236.  False  imprisonment  is  the  unlawful  violation  of  the 
persona]  liberty  of  another. 

73   Cal.   256;   77   Cal.    570;   85   Cal.    R12. 

False    imprisonment,    punishment   for. 

237.  False  imprisonment  is  punishable  by  fine  not  exceeding 
five  hundred  dollars,  or  by  imprisonment  in  the  county  jail  not 
more  than  one  year,  or  by  both.  If  such  false  imprisonment 
be  effected  by  violence,  menace,  fraud,  or  deceit,  it  shall  be 
punishable  by  imprisonment  in  the  state  prison  for  not  less 
than  one  nor  more  than  ten  years.     [Stats.  1901,  p.  53.] 

85   Cal.    312. 


240-246  PENAL  CODE.  532 

CHAPTER  IX. 
ASSAULT   AND   BATTERY. 

Sec.    240.    Assault   lU-flned. 

241.  Assault,   how   i)unisliod. 

242.  Battery  detiued. 

248.  Battery,    how    punished. 

244.  Assaults  with  caustif  chemicals. 

24.").  Assaults   witli   deadly    w<\iitoii.s. 

240.  Deatli    penalty    for    assault    by    life    convict. 

Assault  defined. 

240.  An  assault  is  an  unlawful  attempt,  coupled  with  a  pres- 
ent ability,  to  commit  a  violent  injury  on  the  person  of  another. 

47  Cal.  lOS;  59  Cal.  630;  61  Cal.  621;  6,5  Cal.  212; 
66  Cal.  367;  69  Cal.  604;  70  Cal.  468;  77  Cal.  636; 
119  Cal.    385. 

Assault,  how  punished. 

241.  An  assault  is  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  or  by  imprisonment  in  the  county  jail  not  exceed- 
ing three  months. 

61  Cal.    622;    71   Cal.    624;    88  Cal.    5S0. 

Battery  defined. 

242.  A  battery  is  any  wilful  and  unlawful  use  of  force  or 
violence  upon  the  person  of  another. 

61   Cal.    622;    65   Cal.    213. 

Battery,  how  punished. 

243.  A  battery  is  punishable  by  fine  oi  not  exceeding  one 
thousand  dollars,  or  by  imprisonment  in  the  county  jail  not 
exceeding  six  months,  or  by  both.  [Amendment  approved  Feb- 
ruary 26.  1881;   stats.  1881,  p.  11.1 

60  Cal.   438;  61  Cal.   622;  65  Cal.    156;  65  Cal.   213. 

Assaults  with  caustic  chemicals. 

244.  Every  person  who  wilfully  and  maliciously  places  or 
throws,  or  causes  to  be  placed  or  thrown,  upon  the  person  of 
another,  any  vitriol,  corrosive  acid,  or  caustic  chemical  of  any 
nature,  with  the  intent  to  injure  the  flesh  or  disfigure  the  body 
of  such  person,  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one  nor  more  than  fourteen  years. 

11)6    Cal.    140. 

Assaults  with  deadly  weapons. 

245.  Every  person  who  commits  an  assault  upon  the  person 
of  another  with  a  deadly  weapon  or  instrument,  or  by  any 
means  or  force  likely  to  product  great  bodily  injury,  is  pun- 
ishable by  imprisonment  in  the  state  prison,  or  in  a  county 
jail,  not  exceeding  two  years,  or  by  fine  not  exceeding  five 
thousand  dollars,  or  by  both.  [Amendment  approved  March 
30,  1874;   amendments  1873-4,  p.  428.     In. effect  July  1,  1874.] 

.■)3  Cal.  42S;  61  Cal.  4S8;  61  Cal.  622;  64  Cal.  342; 
66  Cal.  213;  65  Cal.  475;  6?  Cal.  542;  70  Cal.  2; 
78  Cal.  305;  81  Cal.  119;  81  Cal.  651;  99  Cal.  232; 
116  Cal.  686;  118  Cal.  389;  125  Cal.  343;  126  Cal. 
681. 

Death    penalty   for  assault  by   life   convict. 

246.  Every  person  undergoing  a  life  sentence  in  a  state 
prison  of  this  state,  who,  with  malice  aforethought,  commits 
an  assault  upon  the  person  of  another  with  a  deadly  weapon  or 
instrument,  or  by  any  means  or  force  likely  to  produce  great 
bodily  injury,  is  punishable  with  death.     [Stats.  1901,  p.  6.] 


533  LIBEL.  248-254 

CHAPTER   X. 

LIBEL. 

Sec.    248.  Lil)el  defined. 

249.  i'unishnient  of  libel. 

250.  Malice  presumed. 

251.  Truth  may  be  given  in  evidence.     Jury  to  determine  law  and 

fact. 

252.  Publication  defined. 

253.  Liability  of  editors  and  publishers. 

254.  Publi.shing  a   true   report   of   public   official   proceedings   privi- 

leged. 

255.  Extent    of   privilege. 

256.  Other  privileged   communications. 

257.  Threatening    to    pulilish    libel.    Offer    to    prevent    publication, 

witli  intent  to  extort  money. 

2.58.  Cartoon   or   caricature,    publication    of. 

2.59.  Newspaper    articles   to   be   signed. 

Libel  defined. 

248.  A  libel  is  a  malicious  defamation,  expressed  either  by 
writing,  printing,  or  by  signs  or  pictures,  or  the  like,  tending  to 
blacken  the  memory  of  one  who  is  dead,  or  to  impeach  the  hon- 
esty, integrity,  virtue,  or  reputation,  or  publish  the  natural  or 
alleged  defects  of  one  who  is  alive,  and  thereby  to  expose  him  to 
pubxic  hatred,  contempt,  or  ridicule.  [Amendment  approved 
March  30,  1874;  amendments  1873-4,  p.  428.  In  effect  July  1, 
1874.] 

73   Cal.   122. 

Punishment  of  libel. 

249.  Every  person  who  wilfully,  and  with  a  ihalicious  intent  to 
Injure  another,  publishes  or  procures  to  be  published  any  libel, 
is  punishable  by  fine  not  exceeding  five  thousand  dollars,  or 
imprisonment  in  the   county  jail   not  exceeding  one   year. 

Malice  presumed. 

250.  An  injurious  publication  is  presumed  to  have  been 
malicious  if  no  justifiable  motive  for  making  it  is  shown. 

Truth    may   be   given    in   evidence.     Jury  to   determine    law  and 
fact. 

251.  In  all  criminal  prosecutions  for  libel,  the  truth  may  be 
given  in  evidence  to  the  jury,  and  if  it  appears  to  the  jury 
that  the  matter  charged  as  libelous  is  true,  and  was  published 
with  good  motives  and  for  'justifiable  ends,  the  party  shall  be 
acquitted.  The  jury  have  the  right  to  determine  the  law  and 
the   fact. 

Publication  defined. 

252.  To  sustain  a  charge  of  publishing  a  libel,  it  is  not  need- 
ful that  the  words  or  things  complained  of  should  have  been 
read  or  seen  by  another.  It  is  enough  that  the  accused  know- 
ingly parted  with  the  immediate  custody  of  the  libel  under 
circumstances  which  exposed  it  to  be  read  or  seen  by  any  other 
person  than  himself. 

122    Cal.    93, 

Liability  of  editors  and  publishers. 

253.  Each  author,  editor,  and  proprietor  of  any  book,  news- 
paper, or  serial  publication,  is  chargeable  with  the  publication, 
of  any  words  contained  In  any  part  of  such  book,  or  number  of 
such  newspaper  or  serial. 

Publishing  a  true  report  of  public  official  proceedings  privileged. 

254.  No  reporter,  editor,  or  proprietor  of  any  newspaper  is 
liable   to   any    prosecution    for   a    fair    and    true    report    of   any 


255-259  PENAL  CODE.  534 

judicial,  legislative,  or  other  public  official  proceedings,  or  of 
any  statement,  speech,  argument,  or  debate  in  the  course  of  the 
same,  except  upon  proof  of  malice  in  making  such  report,  which 
shall  not  be  implied  from  the  mere  fact  of  publication. 

Extent  of  privilege. 

255.  Libelous  remarks  or  comments  connected  with  matter 
privileged  by  the  last  section  receive  no  privilege  by  reason  of 
their  being  so  connected. 

Other   privileged   communications. 

256.  A  communication  made  to  a  person  interested  in  th« 
communication,  by  one  who  was  also  interested  or  who  stood 
in  such  relation  to  the  former  as  to  afford  a  reasonable  ground 
for  supposing  his  motive  innocent,  is  not  presumed  to  be 
malicious,  and  is  a  privileged  communication. 

Threatening  to  publish  libel.    Offer  to  prevent  publication,  with 
intent  to  extort  money. 

257.  Every  person  who  threatens  another  to  publish  a  libel 
concerning  him,  or  any  parent,  husband,  wife,  or  child  of  such 
person,  or  member  of  his  family,  and  every  person  who  offers 
to  prevent  the  publication  of  any  libel  upon  another  person, 
with  intent  to  extort  any  money  or  other  valuable  consideration 
from  any  person,  is  guilty  of  a  misdemeanor. 

Cartoon    or   caricature,    publication    of. 

258.  It  shall  be  unlawful  to  publish  in  any  newspaper,  hand- 
bill, poster,  book  or  serial  publication,  or  supplement  thereto, 
the  portrait  of  any  living  person  a  resident  of  California,  other 
than  that  of  a  person  holding  a  public  office  in  this  state,  without 
the  written  consent  of  such  person  first  had  and  obtained; 
provided,  that  it  shall  be  lawful  to  publish  the  portrait  of  a 
person  convicted  of  a  crime.  It  shall  likewise  be  unlawful 
to  publish  in  any  newspaper,  handbill,  poster,  book  or  serial 
publication  or  supplement  thereto,  any  caricature  of  any  person 
residing  in  this  state,  which  caricature  will  in  any  manner 
reflect  upon  the  honor,  integrity,  manhood,  virtue,  reputation,  or 
business  or  political  motives  of  the  person  so  caricatured,  or 
which  tends  to  expose  the  individual  so  caricatured  to  public 
hatred,  ridicule,  or  contempt. 

A  violation  of  this  section  shall  be  a  misdemeanor,  and  shall 
be  punished  by  a  fine  of  not  less  than  one  hundred  dollars,  nor 
more  than  five  hundred  dollars,  or  by  imprisonment  in  the  county 
jail  for  not  less  than  one  month  nor  more  than  six  months,  or 
by  both  such  fine  and  imprisonment. 

All  persons  concerned  in  said  publication,  either  as  owner  on 
manager,  editor,  or  publisher,  or  engraver,  are  each  liable  for 
said  publication.  Actions  for  the  violation  of  this  section  shall 
be  tried  in  the  county  where  such  newspaper,  handbill,  poster, 
book,  or  serial  publication  or  supplement  is  printed  or  has  its 
publication  office,  or  in  the  county  where  the  person  whose 
portrait  or  caricature  is  published  resides  at  the  time  of  the 
alleged  publication.  [In  effect  60  days  from  February  23.  1899. 
Stats.  1899,  p.  28.] 

Newspaper  articles  to  be  signed. 

259.  Every  article,  statement,  or  editorial,  contained  in  any 
newspaper  or  other  printed  publication,  printed  or  published  in 
this  state,  which  by  writing  or  printing  tends  to  blacken  the 


635  ,  LIBEL  259 

memory  of  one  who  is  dead,  or  to  impeach  the  honesty,  integ- 
rity, virtue  or  reputation,  or  publish  the  natural  or  alleged 
defects  of  one  who  is  alive,  and  thereby  expose  him  or  her  to 
public  hatred,  contempt  or  ridicule,  must  be  supplemented  by  the 
true  name  of  the  writer  of  such  article,  statement,  or  editorial, 
signed  or  printed  at  the  end  thereof,  ^ny  owner,  proprietor  or 
publisher  of  any  newspaper  or  other  printed  publication,  printed 
or  published  in  this  state,  who  shall  publish  any  such  article, 
statement,  or  editorial  in  any  printed  publication,  printed  or 
published  in  this  state,  which  is  not  so  supplemented  by  the  true 
name  of  the  writer  thereof,  signed  or  printed  at  the  end  thereof 
as  required  by  this  section,  shall  forfeit  the  sum  of  one  thousand 
dollars  for  each  and  every  article,  statement,  or  editorial  so 
published  in  violation  of  the  requirements  of  this  section,  which 
said  sum  so  forfeited  may  be  sued  for  ami  recovered  against 
any  such  owner,  publisher,  or  proprietor  sfe  violating  this  sec- 
tion, in  a  civil  action  by  and  in  the  name  of  any  person  who  may 
bring  action  therefor,  one-half  of  the  recovery  to  be  paid  into 
the  treasury  of  this  state  by  the  plaintiff  and  the  other  half  to  be 
retained  by  the  plaintiit  in  such  action.  If,  in  any  such  action, 
it  shall  appear  by  affidavit  to  the  satisfaction  of  the  court  where 
such  action  is  commenced  that  a  defendant  has  made  a  pub- 
lication in  violation  of  this  section  within  this  state,  and  that 
after  due  diligence  such  defendant  cannot  be  found  within  this 
state,  or  is  a  foreign  corporation,  the  court  must  direct  an 
attachment  in  such  action  to  issue  against  the  property  of  such 
defendant,  and  thereupon  such  attachment  shall  issue  and  be 
executed  as  in  other  cases  where  by  law  an  attachment  is  pro- 
vided for.  Where  the  work  of  any  author  is  contained  in  a  book 
or  pamphlet  it  shall  be  sufficient  that  the  name  of  the  author 
be  printed  upon  the  cover  or  upon  a  leaf  therein,  and  where  any 
publisher  in  the  regular  course  of  business  publishes  as  news, 
telegraphic  dispatches  not  furnished  or  forwarded  by  its  or  his 
own  correspondent  or  correspondents,  but  furnished  and  for- 
warded by  telegraph  as  news  by  a  telegraphic  news  agency, 
established  and  engaged  in  forwarding  telegraphic  news  to  var- 
ious different  publishers  as  a  business,  and  having  an  established 
business  name  as  such  a  news  agency,  it  shall  be  sufficient  as  ta 
such  dispatches,  that  the  said  business  name  of  such  telegraphic 
news  agency  be  printed  in  connection  with  such  dispatches  as 
the  forwarder  of  the  same.  [In  effect  30  days  from  passage. 
Signed  March  20,  1899;  stats.  1899,  p.  155.] 


261  PENAL  CODE.  536 

TITLE  IX. 

OF  CRIMES  AGAINST  THE  PERSON  AND  AGAINST  PUBLIC 
DECENCY  AND  GOOD  MORALS. 

Chapter  I.     Rape,     abduction,     carnal    abuse   of    children,    and 
seduction,  sections  261-7. 
II.     Abandonment,   and    neglect   of   children,       sections 
270-2. 

III.  Abortions,  sections  274-5. 

IV.  Child-stealing,  section  278. 

v.     Bigamy,  incest,  and  the  crime  against  nature,  sec- 
tions  281-7. 
VI.     Violating  sepulture  and    the    remains  of  the  dead, 

section  290-7. 
VII.     Crimes  gfeainst  religion   and   conscience,   and   other 
offenses  against  good  morals,  sections  299-309. 
VIII.     Indecent  exposure,   obscene  exhibitions,   books,   and 
prints,   and   bawdy   and   other   disorderly   houses, 
sections  311-18. 
IX.     Lotteries,  sections  319-26. 
X.     Gaming,  sections  330-7. 
XI.     Pawnbrokers,  sections  338-43. 
XII.     Other  injuries  to  persons,  sections  346-67. 

CHAPTER  1. 

RAPE,  ABDUCTION,  CARNAL  ABUSE  OF  CHILDREN,  AND 
SEDUCTION. 

Sec.    2<)1.  Rapt'  defliu'd. 

202.  Wlien  iihysical  ability   must   l>e  proved. 

263.  Penetration  .sutflelent. 

264.  Punishment    of   rape. 
26.'5.  Aliduetlon   of   women. 

266.  Seduction   for  i)urposes  of  prostitution. 

267.  AlHluction. 

268.  Seduction  under  promise  of  marriage. 

269.  Intermarriage  sul)se(iueat  to  seduction. 

Rape  defined. 

261.  Rape  is  an  act  of  sexual  intercourse,  accomplished  with 
a  female  not  the  wife  of  the  perpetrator,  under  either  of  the 
following  circumstances: 

1.  Where  the  female  is  under  the  age  of  sixteen  years; 

2.  Where  she  is  incapable,  through  lunacy  or  other  unsound- 
ness of  mind,  whether  temporary  or  permanent,  of  giving  legal 
consent; 

3.  Where  she  resists,  but  her  resistance  is  overcome  by  force 
or  violence; 

4.  Where  she  is  prevented  from  resisting  by  threats  of  great 
and  immediate  bodily  harm,  accompanied  by  apparent  power 
of  execution,  or  by  any  intoxicating  narcotic,  or  anaesthetic 
substance,  administered  by  or  with  the  privity  of  the  accused; 

5.  Where  she  is  at  the  time  unconscious  of  the  nature  of  the 
act,  and  this  is  known  to  the  accused; 

6.  Where  she  submits  under  the  belief  that  the  person  com- 
mitting the  act  is  her  husband,  and  this  belief  is  Induced  by  any 
artifice,  pretense,  or  concealment  practiced  by  the  accused,  with 


537  RAPE,  ABDUCTION,  SEDUCTION.  262-268 

intent  to  induce  such  belief.     1  Amendment  approved  March  27, 
1897;  stats.  1897,  p.  201.] 

63  Cal.  615:  70  Cal.  468;  70  Cal.  473;  To  Cal.  324; 
94  Cal.  311;  106  Cal.  213;  112  Cat.  672;  117  Cal. 
.-)8.');  120  Cal.  .■.21;  133  Cal.  23. 

When  physical  ability  must  be  proved. 

262.  No  conviction  for  rape  can  be  had  against  one  who  was 
under  the  age  of  fourteen  years  at  the  time  of  the  act  alleged, 
unless  his  physical  ability  to  accomplish  penetration  is  proved 
as  an  independent  fact,  and  beyond  a  reasonable  doubt. 

»S   Cal.    3.'.3. 

Penetration   sufficient. 

263.  The  essential  guilt  of  rape  consists  in  the  outrage  to  the 
person  and  feelings  of  the  female.  Any  sexual  penetration, 
however  slight,  is  sufficient  to  complete  the  crime. 

133   Cal.    23. 

Punishment  of  rape. 

264.  Rape  is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  five  years. 

98   Cal.    129. 

Abduction  of  women. 

265.  Every  person  who  takes  any  woman  unlawfully,  against 
her  will,  and  by  force,  menace,  or  duress,  compels  her  to  marry 
him,  or  to  marry  any  other  person,  or  to  be  defiled,  is  punishable 
by  imprisonment  in  the  state  prison  not  less  than  two  nor  more 
than  fourteen  years. 

Seduction  for  purposes  of  prostitution. 

266.  Every  person  who  inveigles  or  entices  any  unmarried 
female,  of  previous  chaste  character,  under  the  age  of  eighteen 
years,  into  any  house  of  ill-fame,  or  of  assignation,  or  elsewhere, 
for  the  purpose  of  prostitution,  or  to  have  illicit  carnal  con- 
nection with  any  man;  and  every  person  who  aids  or  assists 
in  such  inveiglement  or  enticement;  and  every  person  who, 
by  any  false  pretenses,  false  representation,  or  other  fraudulent 
means,  procures  any  female  to  have  illicit  carnal  connection  with 
any  man,  is  punishable  by  imprisonment  in  the  state  prison  not 
exceeding  five  years,  or  by  imprisonment  in  a  county  jail  not 
exceeding  one  year,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  by  both  such  fine  and  imprisonment.  [Amendment 
approved  March  30,  1874;  amendments  1873-4,  p.  429.  In  effect 
July  1.  1874.1 

49  Cal.    10;    119   Cal.    594. 

Abduction. 

26/.  Every  person  who  takes  away  any  female  under  the  age 
of  eighteen  years  from  her  father,  mother,  guardian,  or  other 
person  having  the  legal  charge  of  her  person,  without  their  con- 
sent, for  the  purpose  of  prostitution,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  five  years,  and  a  fine  not 
exceeding  one  thousand  dollars. 

61    Cal     479;    71    Cal.    612;    S8    Cal.    138;    SS    Cal. 
317;   96  Cal.   318. 

Seduction  under  promise  of  marriage. 

268.  Every  person  who,  under  promise  of  marriage,  seduces 
and  has  sexual  intercourse  with  an  unmarried  female  of  previous 
chaste  character,  is  punishable  by  imprisonment  in  the  state 
prison  for  not  more  than  five  years,  or  by  a  fine  of  not  more 
than  five  thousand  dollars,  or  by  both  such  fine  and  imprison- 


269-274  PENAL  CODE.  538 

ment.     [New  section  approved  Feb.   15th,  1889;    stats.  1889,  p. 
12.] 

93   Cal.    77;   97   Cal.    451;    118    Cal.    673;    120   Cal. 
539;    123   Cal.   226. 

Intermarriage  subsequent  to  seduction. 

269.  The  intermarriage  of  the  parties  subsequent  to  the  com- 
mission of  the  offense  is  a  bar  to  a  prosecution  for  a  violation 
of  the  last  section;  provided,  such  marriage  take  place  prior  to 
the  finding  of  an  indictment  or  the  filing  of  an  information 
charging  such  offense.  I  New  section  approved  February  15, 
1889;   stats.  1889.  p.  12.] 

120    Cal.    539;    123    Cal.    225. 

CHAPTER  II. 
ABANDONMENT  AND  NEGLECT  OF  CHILDREN. 

Sec.    270.    Omitting  to  provide  child   with  necessaries. 

271.  Deserting  child. 

272.  Disposing  of  child  for  mendicant  biisine.ss. 

Omitting  to  provide  child  with  necessaries. 

270.  Every  parent  of  any  child  who  wilfully  omits,  without 
lawful  excuse,  to  perform  any  duty  imposed  upon  him  by  law,  to 
furnish  necessary  food,  clothing,  shelter,  or  medical  attendance 
for  such  child,  is  guilty  of  a  misdemeanor. 

Deserting  child. 

271.  Every  parent  of  any  child  under  the  age  of  six  years, 
and  every  person  to  whom  any  such  child  has  been  confided  for 
nurture  or  education,  who  deserts  such  child  in  any  place  what- 
ever, with  intent  wholly  to  abandon  it,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  seven  years,  or  in  a 
county  .iail  not  exceeding  one  year. 

Disposing  of  child  for  mendicant  business. 

2/2.  Any  person,  whether  as  parent,  relative,  guardian, 
employer,  or  otherwise,  having  in  his  care,  custody,  or  control 
any  child  under  the  age  of  sixteen  years,  who  shall  sell,  appren- 
tice, give  away,  let  out,  or  otherwise  dispose  of  any  such  child 
to  any  person,  under  any  name,  title,  or  pretense,  for  the 
vocation,  use,  occupation,  calling,  service,  or  purpose  of  singing, 
playing  on  musical  instruments,  rope  walking,  dancing,  beg- 
ging, or  peddling,  in  any  public  street  or  highway,  or  in  any 
mendicant  or  wandering  business  whatsoever;  and  any  person 
wno  shall  take,  receive,  hire,  employ,  use,  or  have  in  custody  any 
child  for  such  purposes,  or  either  of  them,  is  guilty  of  a  misde- 
meanor. [New  section  approved  March  3,  1876;  amendments 
1875-6,  p.  110.     In  effect  March  3,  1876.] 


CHAPTER  III. 
ABORTIONS. 

Sec.    274.    Adniinisterlnj:  dr\igs.  etc..   with  intent  to  produce  miscarriage. 
'2~o.     Submitting    to   sin    nttemi)t   to   produce   miscarriage. 

Administering  drugs,  etc.,  with  intent  to  produce  miscarriage. 

274.  Every  person  who  provides,  supplies,  or  adminsters  to 
any  pregnant  woman,  or  procures  any  such  woman  to  take  any 
medicine,  drug,  or  substance,  or  uses  or  employs  any  instrument 
or  other  means  whatever,  with  intent  thereby  to  procure  the 
miscarriage   of  such  woman,   unless   the   same   is   necessary  to 


539  CHILD  STEALING,  BIGAMY.  275-284 

preserve  her  life,  is  punishable  by   imprisonment  in  the  state 
prison  not  less  than  two  nor  more  than  five  years. 

Submitting  to  an  attempt  to  produce  miscarriage. 

275.  EJvery  person  who  solicits  of  any  person  any  medicine, 
drug,  or  substance  whatever,  and  takes  the  same,  or  who  sub- 
mits to  any  operation,  or  to  the  use  of  any  means  whatever,  with 
intent  thereby  to  procure  a  miscarriage,  unless  the  same  is 
necessary  to  preserve  her  life,  is  punishable  by  imprisonment 
in  the  state  prison  not  less  than  one  nor  more  than  five  years. 


CHAPTER  IV. 

CHILD   STEALING. 

278.    Cbild-stealing,   penalty. 

Cliiid-steaiing,   penalty.  "" 

278.  Every  person  who  maliciously,  forcibly,  or  fraudulently 
takes  or  entices  away  any  minor  child  with  intent  to  detain 
and  conceal  such  child  from  its  parent,  guardian,  or  other  person 
having  the  lawful  charge  of  such  child,  is  punishable  by  impris- 
onment in  the  state  prison  not  exceeding  twenty  years.  [Stats. 
1901,  p.  269.] 

60    Cal.    73. 

CHAPTER  V. 

BIGAMY,  INCEST,  AND  THE  CRIME  AGAINST  NATURE. 

Sec.    281.  Bigamy  defined. 

282.  Exceptions. 

28.3.  PunLsliment  of  bigamy. 

284.  Maiiying  a  husband  or  wife  of  another. 

285.  Incest. 

286.  Crime  against  nature. 

287.  Penetration  sufficient  to  complete  the  crime. 

288.  Crimes   against   children    a   felony. 

Bigamy  defined. 

281.  Every  person  having  a  husband  or  wife  living,  who  mar- 
ries any  other  person,  except  in  the  cases  specified  in  the  next 
section,  is  guilty  of  bigamy. 

99    Cal.    288; 

Exceptions. 

282.  The  last  section  does  not  extend — 

1.  To  any  person  by  reason  of  any  former  marriage,  whose 
husband  or  wife  by  such  marriage  has  been  absent  for  five  suc- 
cessive years  without  being  known  to  such  person  within  that 
time  to  be  living;   nor, 

2.  To  any  person  by  reason  of  any  former  marriage  which 
has  been  pronounced  void,  annulled,  or  dissolved  by  the  judg- 
ment of  a  competent  court. 

Punisliment  of  bigamy. 

283.  Bigamy  is  punishable  by  fine  not  exceeding  two  thousand 
dollars  and  by  imprisonment  in  the  state  prison  not  exceeding 
three  years. 

Marrying  a  husband  or  wife  of  another. 

284.  Every  person  who  knowingly  and  wilfully  marries  the 
husband  or  wife  of  another,  in  any  case  in  which  such  husband 
or  wife  would  be  punishable  under  the  provisions  of  this  chapter. 


285-2'J2  penal  code.  ^  540 

Is  punishable  by  fine  not  less  than  two  thousand  dollars,  or  by 
imprisonment  in  the  state  prison  not  exceeding  three  years. 

Jncest. 

288.  Persons  being  within  the  degrees  of  consanguinity 
within  which  marriages  are  declared  by  law  to  be  incestuous 
and  void,  who  intermarry  with  each  other,  or  who  commit  for- 
nication or  adultery  with  each  other,  are  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  ten  years. 

102    Cal.    242;    119   Cal.    458. 

Crime  against  nature. 

286.  Every  person  who  is  guilty  of  the  infamous  crime 
against  nature,  committed  with  mankind  or  with  any  animal, 
is  punishable  by  Imprisonment  in  the  state  prison  not  less  than 
five  years. 

Penetration  sufficient  to  complete  the  crime. 

287.  Any  sexual  penetration,  however  slight,  is  sufficient 
to  complete  the  crime  against  nature. 

Crimes  against  children  a  felony. 

288.  Any  person  who  shall  wilfully  and  lewdly  commit  any 
lewd  or  lascivious  act  other  than  the  acts  constituting  other 
crimes  provided  for  in  part  two  of  this  code  upon  or  with  the 
body,  or  any  part  or  member  thereof,  of  a  child  under  the  age 
of  fourteen  years,  with  the  intent  of  arousing,  appealing  to,  or 
gratifying  the  lust  or  passions  or  sexual  desires  of  sucji  person 
or  of  such  child,  shall  be  guilty  of  a  felony  and  shall  b^  impris- 
oned in  the  state  prison  not  less  than  one  year.  [Stats.  1901, 
p.  630.] 

CHAPTER  VI.  J 

VIOLATING     SEPULTURE     AND     THE     REMAINS    6F    THE 

DEAD. 

Sec.    2!M)  T'nlawfnl  iimtilation  or  removal  of  (load  bortios 

291.  Unlawful  removal  of  dead  body  from  grave  foi  dls.-ioction,  etc. 

2f)2.  Who  are  charged  with  the  duty  of  burial. 

293.  Punishment  for   omitting  to  bury. 

294.  Who   are   entitled    to    custody    of   a    body. 
20.").  Arresting   or   attaching   a   dead    body. 

296.  Defacing  toml>s  and  monuments. 

297.  Unlawful   interments. 

Unlawful  mutilation  or  removal  of  dead  bodies. 

29U.  Every  person  who  mutilates,  disinters,  or  removes  from 
the  place  of  sepulture  the  dead  body  of  a  human  being  without 
authority  of  law,  is  guilty  of  felony.  But  the  provisions  of  this 
section  do  not  apply  to  any  person  who  removes  the  dead  body 
of  a  relative  or  friend  for  reinterment. 

T>S   Cal.    227. 

Unlawful  removal  of  dead  body  from  grave  for  dissection,  etc. 

291.  Every  person  who  removes  any  part  of  the  dead  body 
of  a  human  being  from  any  grave  or  other  place  where  the 
same  has  been,  buried,  or  from  any  place  where  the  same  is 
deposited  while  awaiting  burial,  with  intent  to  sell  the  same 
or  to  dissect  it,  without  authority  of  law,  or  from  malice  or 
wantonness,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years. 

Who  are  charged  with  the  duty  of  burial. 

292.  The  duty  of  burying  the  body  of  a  deceased  person 
devolves  upon  the  persons  hereinafter  specified: 


541  VIOLATING  SEPULTURE.  293-297 

1.  If  the  deceased  was  a  married  woman,  the  duty  of  burial 
devolves  upon  her  husband; 

2.  If  the  deceased  was  not  a  married  woman,  but  left  any 
kindred,  the  duty  of  burial  devolves  upon  the  person  or  persons 
in  the  same  degree  nearest  of  kin  to  the  deceased,  being  of 
adult  age,  and  within  this  state,  and  possessed  of  sufficient 
means  to  defray  the  necessary  expenses; 

3.  If  the  deceased  left  no  husband  nor  kindred  answering  the 
foregoing  description,  the  duty  of  burial  devolves  upon  the 
coroner  conducting  an  inquest  upon  the  body  of  the  deceased, 
if  any  such  inquest  is  held;  if  there  is  none,  then  upon  the 
persons  charged  with  the  support  of  the  poor  in  the  locality  in 
which  the  death  occurs; 

1-  In  case  the  person  upon  whom  the  duty  of  burial  is  cast 
by  the  foregoing  provisions  omits  to  make  such  burial  within  a 
reasonable  time,  the  duty  devolves  upon  the  person  next  speci- 
fied; and  if  all  omit  to  act,  it  devolves  upon  the  tenant;  or  if 
there  is  no  tenant,  upon  the  owner  of  the  premises  or  master: 
or  if  there  is  no  master,  upon  the  owner  of  the  vessel  in  which 
the  death  occurs  or  the  body  is  found. 

110  Cal.    88;    113  Cal.    203;   123  Cal.    289;   131   Cal. 

72. 

Punishment  for  omitting  to   bury. 

293.  Every  person  upon  whom  the  duty  of  making  burial  of 
the  remains  of  a  deceased  person  is  imposed  by  law,  who  omits 
to  perform  that  duty  within  a  reasonable  time,  is  guilty  of  a 
misdemeanor;  and,  in  addition  to  the  punishment  prescribed 
therefor,  is  liable  to  pay  to  the  person  performilig  the  duty  in 
his  stead  treble  the  expenses  incurred  by  the  latter  in  making 
the  burial,  to  be  recovered  in  a  civil  action. 

113   Cal.    203. 

Who  are  entitled  to  custody  of  a  body. 

294.  The  person  charged  by  law  with  the  duty  of  burying  the 
body  of  a  deceased  person  is  entitled  to  the  custody  of  such 
body  for  the  purpose  of  burying  it;  except  that  in  the  case  in 
which  an  inquest  is  required  by  law  to  be  held  upon  a  dead 
body  by  a  coroner,  such  coroner  is  entitled  to  its  custody  until 
such  inquest  has  been  completed. 

131    Cal.     72. 
Arresting  or  attaching  a  dead  body. 

295.  Every  person  who  arrests  or  attaches  any  dead  body 
of  a  human  being,  upon  any  debt  or  demand  whatever,  or 
detains  or  claims  to  detain  it  for  any  debt  or  demand,  or  upon 
any  pretended  lien  or  charge,  is  guilty  of  a  misdemeanor. 

Defacing  tombs  and  monuments. 

296.  Every  person  who  wilfully  and  maliciously  defaces, 
breaks,  destroys,  or  removes  any  tomb,  monument,  or  gravestone, 
erected  to  any  deceased  person,  or  any  memento  or  memorial, 
or  any  ornamental  plant,  tree,  or  shrub,  appertaining  to  the  place 
of  burial  of  a  human  being,  or  who  shall  mark,  deface,  in.lure, 
destroy,  or  remove  any  fence,  post,  rail,  or  wall  of  any  cemetery 
or  graveyard,  is  guilty  of  a  misdemeanor. 

Unlawful  interments. 

297.  Every  person  who  shall  bury  or  inter,  or  cadse  to  be 
buried  or  interred,  the  dead  body  of  any  human  being,  or  any 
human  remains,  in  any  place  within  the  corporate  limits  of  any 
city  or  town   in  this   state,   or  within  the   corporate  limits   of 


302-305  PENAL  CODE.  542 

the  city  and  county  of  San  Francisco,  except  in  a  cemetery,  or 
place  of  burial  now  existing  under  the  laws  of  this  state,  and 
in  which  interments  have  been  made,  or  that  is  now  or  may 
hereafter  be  established  or  organized  by  the  board  of  super- 
visors of  the  county,  or  city  and  county,  in  which  such  city  or 
town,  or  city  and  county  is  situate,  shall  be  guilty  of  a  misae- 
meanor.  [New  section  approved  March  30,  1874;  amendments 
1873-4,  p.  458.  In  effect  March  30,  1874.]  . 
60  Cal.   4. 

CHAPTER  VII. 

OF  CRIMES  AGAINST   RELIGION   AND   CONSCIENCE,   AND 

OTHER    OFFENSES    AGAINST    GOOD    MORALS. 

Sec.    302.    Disturbing  religious  meetings. 

303.  Sale    of    liquors   at    theatres,    and    employing    women    to   sell 

liquors  thereat. 

304.  Selling  liquors  at  camp-meeting. 

305.  Limitation  of  preceding  section. 

306.  Females  exhibited   in   public  places. 

307.  Keeping  or  resorting  to  place  where  opium  is  used. 

308.  Selling  tobacco  to  minors. 

309.  Admission  of  minor  to  place  of  prostitution. 
310i.  Barber  shops  open  on  Sunday. 

Disturbing  religious  meetings. 

302.  Every  person  who  wilfully  disturbs  or  disquiets  any 
assemblage  of  people  met  for  religious  worship  by  noise,  pro- 
fane discourse,  rude,  or  indecent  behavior,  or  by  any  unnecessary 
noise,  either  within  the  place  where  such  meeting  is  held,  or  so 
near  it  as  to  disturb  the  order  and  solemnity  of  the  meeting, 
is  guilty  of  a  misdemeanor. 

eo    Cal.    195, 

Sale  of  liquors  at  theaters,  and  employing  women  to  sell  liquors 
thereat. 

303.  Every  person  who  sens  or  furnishes  any  malt,  vinous, 
or  spirituous  liquors  to  any  person  in  the  auditorium  or  lobbies 
of  any  theater,  melodeon,  museum,  circus,  or  caravan,  or  place 
where  any  farce,  comedy,  tragedy,  ballet,  opera,  or  play  is 
being  performed,  or  any  exhibition  of  dancing,  juggling, 
wax-work  figures  and  the  like  is  being  given  for  public 
amusement,  and  every  person  who  employs  or  procures,  or 
causes  to  be  employed  or  procured,  any  female  to  sell  or  fur- 
nish any  malt,  vinous,  or  spirituous  liquors  at  such  place,  is 
guilty  of  a  misdemeanor. 

Selling  liquors  at  camp-meeting. 

304.  Every  person  who  erects  or  keeps  a  booth,  tent,  stall, 
or  other  contrivance  for  the  purpose  of  selling  or  otherwise  dis- 
posing of  any  wine,  or  spiritous,  or  intoxicating  liquors,  or  any 
drink  of  which  wines,  spiritous,  or  intoxicating  liquors  form  a 
part,  or  for  selling  or  otherwise  disposing  of  any  article  of  mer- 
chandise, or  who  peddles,  or  hawks  about  any  such  drink  or 
article,  within  one  mile  of  any  calnp  or  field  meeting  for  religious 
worship,  during  the  time  of  holding  such  meeting,  is  punishable 
by  fine  of  not  less  than  five  nor  more  than  five  hundred  dollars. 

60  Cal.    191. 

Limitation   of  preceding  section. 

305.  The  provisions  of  the  preceding  section  do  not  apply  to, 
any  person  carrying  on  a  regular  business  in  the  sale  of  liquors 


543  CRIMES  AGAINST  RELIGION.  306-309 

or  other  articles,  which  business  was  established  prior  to  the 
appointment  of  the  meeting  referred  to  in  such  section. 

Females  exhibited  in  public  places. 

306.  Every  person  who  causes,  procures,  or  employs  any 
female,  for  hire,  drink,  or  gain,  to  play  upon  any  musical  instru- 
ment, or  to  dance,  promenade,  or  otherwise  exhibit  herself,  in 
any  drinking  saloon,  dance-cellar,  ballroom,  public  garden,  public 
highway,  common,  park,  or  street,  or  in  any  ship,  steamboat, 
or  railroad  car,  or  in  any  place  whatsoever,  if  in  such  place 
there  is  connected  therewith  the  sale  or  use,  as  a  beverage,  of 
any  intoxicating,  spirituous,  vinous,  or  malt  liquors;  or  who 
shall  allow  the  same  in  any  premises  under  his  control,  where 
intoxicating,  spirituous,  vinous,  or  malt  liquors  are  sold  or  used, 
when  two  or  more  persons  are  present,  is  punishable  by  a  fine 
of  not  less  than  fifty  nor  more  than  five  hundred  dollars,  or  by 
imprisonment  in  tne  county  jail  not  exceeding  three  months, 
or  by  both;  and  every  female  so  playing  upon  any  musical 
instrument,  or  dancing,  promenading,  or  exhibiting  herself,  as 
herein  aforesaid,  is  punishable  by  a  fine  not  exceeding  one  hun- 
dred dollars,  or  by  imprisonment  in  the  county  jail  not  exceed- 
ing one  month,  or  by  both.  [Amendment  approved  March  30, 
1874;    amendments  1873-4,  p.   460.     In  effect  in  sixty  days.] 

57   Cal.    605. 

Keeping  or  resorting  to  place  where  opium  is  used. 

307.  Every  person  who  opens  or  maintains,  to  be  resorted 
to  by  other  persons,  any  place  where  opium,  or  any  of  its 
preparations,  is  sold  or  given  away,  to  be  smoked  at  such  place; 
and  any  person  who,  at  such  place  sells  or  gives  away  any 
opium,  or  its  said  preparations,  to  be  there  smoked  or  other- 
wise used;  .and  every  person  who  visits  or  resorts  to  any  such 
place  for  the  purpose  of  smoking  opium  or  its  said  prepara- 
tions, is  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  punished  by  a  fine  not  exceeding  five  hundred  dollars, 
or  by  imprisonment  in  the  county  jail  not  exceeding  six  months, 
or  by  both  such  fine  and  imprisonment.  [New  section  approved 
March  4,  1881;   Stats.  1881,  p.  34.    In  effect  March  4,  1881.1 

73    Cal.    144. 

Selling  tobacco  to  minors. 

308.  Every  person  who  sells  or  gives  or  furnishes  in  any 
way  to  another  who  is  in  fact  under  the  age  of  sixteen  years, 
any  tobacco,  or  preparation  of  tobacco,  is  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  punished  by  a 
fine  not  exceeding  one  hundred  dollars;  provided,  however, 
that  this  section  shall  not  be  deemed  to  apply  to  articles  fur- 
nished on  prescriptions  from  physicians  authorized  by  law  to 
practice  medicine,  nor  to  persons  who  supply  such  articles  to 
their  own  children,  nor  to  sales  made  to  such  minors  upon  the 
written  consent  of  the  parents  or  guardians  of  such  minors 
first  obtained  in  writing  by  the  vender.  [New  section  added 
March  10,  1891;   Stats.  1891,  p.  64.] 

Admission  of  minor  to  place  of  prostitution. 

309.  Any  proprietor,  keeper,  manager,  conductor,  or  person 
having  the  control  of  any  house  of  prostitution,  or  any  house 
or  room  resorted  to  for  the  purpose  of  prostitution,  who  shall 
admit  or  keep  any  minor  of  either  sex  therein;  or  any  parent 
or  guardian  of  any  such  minor,  who  shall  admit  or  keep  such 
minor,    or   sanction,    or   connive   at   the   admission   or   keeping 


310^-312  PENAL  CODE.  644 

thereof,  into,  or  in  any  such  house,  or  room,  shall  be  guilty  of 
a  misdemeanor.  [New  section,  approved  April  12.  1880;  Amend- 
ments  1880,   p.   25.     In   effect   April    12,    1880.1 

Barber  shops  open  on  Sunday. 

310%.  Every  person  who  as  proprietor,  manager,  lessee, 
employee,  or  agent  keeps  open  or  conducts,  or  causes  to  be 
kept  open  or  conducted,  any  barber-shop,  bath-house  and 
barber-shop,  barber-shop  of  a  bathing  establishment,  or  hair- 
dressing  establishment,  or  any  place  for  shaving  or  hair-dressing, 
used  or  conducted  in  connection  witt  any  other  place  of  busi- 
ness or  resort,  or  who  engages  at  work  or  labor  as  a  barber 
in  any  such  shop  or  establishment  on  Sunday,  or  on  a  legal 
holiday,  after  the  hour  of  12  o'clock  M.  of  said  day,  is  guilty 
of  a  misdemeanor.  [New  section  approved  March  27,  1895. 
Stats.   1895,  p.  247.     In  effect  in  sixty  days.| 

112    Cal.    4T0. 

CHAPTER  VIII. 

INDECENT    EXPOSURE,    OBSCENE     EXHIBITIONS,    BOOKS, 
AND   PRINTS,  AND  BAWDY   AND  OTHER  DIS- 
ORDERLY  HOUSES. 

Sec.    311.  Indecent  exposures,  exhibitions,  and  pictures. 

312.  Seizure   of   indecent    articles   authorized. 

313.  Their  character  to  be  sumiiiarily  determlnecr. 

314.  Their  destruction. 

315.  Keeping  or  residing  in  a  bouse  of  ill-fame. 

316.  Keeping  disorderly  houses. 

317.  Advertising  to  produce  miscarriage. 

318.  Enticing  to  place  of  gambling  or  prostitution. 

Indecent  exposures,  exhibitions,  and  pictures. 

311.  Every  person  who  wilfully  and  lewdly,  either: 

One — Exposes  his  person,  or  the  private  parts  thereof,  in  any 
public  place,  or  in  any  place  where  there  are  present  other 
persons  to  be  offended  or  annoyed  thereby;  or, 

Two — Procures,  counsels,  or  assists  any  person  so  to  expose 
himself,  or  to  take  part  in  any  model  artist  exhibition,  or  to 
make  any  other  exhibition  of  himself  to  public  view,  or  to  the 
view  of  any  number  of  persons,  such  as  is  offensive  to  decency, 
or  is  adapted  to  excite  to  vicious  or  lewd  thoughts  or  acts;   or. 

Three — Writes,  composes,  stereotypes,  prints,  publishes,  sells, 
distributes,  keeps  for  sale,  or  exhibits  any  obscene  or  indecent 
writing,  paper,  or  book;  or  designs,  copies,  draws,  engraves, 
pR.ints,  or  otherwise  prepares  any  obscene  or  indecent  pic- 
ture or  print;  or  molds,  cuts,  casts,  or  otherwise  makes  any 
obscene   or   indecent   figure;    or. 

Four — Writes,  composes,  or  publishes  any  notice  or  advertise- 
ment of  any  such  writing,  paper,  book,  picture,  print,  or  fig- 
ure;  or, 

Five — Sings  any  lewd  or  obscene  song,  ballad,  or  other  words,  in 
any  public  place,  or  in  any  place  where  there  are  persons  pres- 
ent to  be  be  annoyed  thereby  r 

— Is  guilty  of  a  misdemeanor.  [Amendment  approved  March 
30,  1874;  Amendrnfents  1873-4,  p.  429.     In  effect  July  1,  1874.1 

Seizure  of  indecent  articles  authorized. 

312.  Every  person  who  is  authorized  or  enjoined  to  arrest 
any   person   for  a   violation   of  subdivision    3    of  the   last  sec- 


646  OBSCJiNK  BOOKS— DLSOKDERLY  HOUSES.  313-318 

tion,  is  equally  authorized  and  enjoined  to  seize  any  obscene- 
or  indecent  writing,  paper,  book,  picture,  print,  or  figure  found 
in  possession  or  under  the  control  of  the  person  so  arrested, 
and  to  deliver  the  same  to  the  magistrate  before  whom  the 
person  so  arrested  is  required  to  be  taken. 

Their  character  to  be  summarily  determined. 

313.  The  magistrate  to  whom  any  obscene  or  indecent  writ- 
ing, paper,  book,  picture,  print,  or  figure  is  delivered,  pursuant  to 
the  foregoing  section,  must,  upon  the  examination  of  the  accused, 
or,  if  the  examination  is  delayed  or  prevented,  without  awaiting 
such  examination,  determine  the  character  of  such  writing, 
paper,  book,  picture,  print,  or  figure,  and  if  he  finds  it  to  be 
obscene  or  indecent,  he  must  deliver  one  copy  to  the  district 
attorney  of  the  county  in  which  the  accused  is  liable  to  indict- 
ment or  trial,  and  must  at  once  destroy  all  the  other  copies. 

Their  destruction. 

314.  Upon  the  conviction  of  the  accused,  such  district  attor- 
ney must  cause  any  writing,  paper,  book,  picture,  print,  or 
figure,  in  respect  whereof  the  accused  stands  convicted,  and 
which  remains  in  the  possession  or  under  the  control  of  such 
district  attorney,  to  be  destroyed. 

Keeping  or  residing  in  a  house  of  ill  fame. 

315.  Every  person  who  keeps  a  house  of  ill-fame  in  this 
state,  resorted  to  for  the  purposes  of  prostitution  or  lewd- 
ness, or  who  wilfully  resides  in  such  house,  is  guilty  of  a  mis- 
demeanor. 

SS   Cal.    103. 

Keeping  disorderly  houses.     , 

316.  Every  person  who  keeps  any  disorderly  house,  or  any 
house  for  the  purpose  of  assignation  or  prostitution,  or  any 
house  of  public  resort,  by  which  the  peace,  comfort,  or  decency 
of  the  immediate  neighborhood  is  habitually  disturbed,  or  who 
keeps  any  inn  in  a  disorderly  manner;  and  every  person  who 
lets  any  apartment  or  tenement,  knowing  that  it  is  to  be  used 
for  the  purpose  of  assignation  or  prostitution,  is  guilty  of  a 
misdemeanor.  [Amendment  approved  March  30,  1874.  In  effect 
July  1,  1874;    Amendments   1873-4,  p.   430.] 

114    Cal.    93;    127   Cal.    »5. 

Advertising  to  produce  miscarriage. 

317.  Every  person  who  wilfully  writes,  composes,  or  pub- 
lishes any  notice  or  advertisement  of  any  medicine  or  means 
for  producing  or  facilitating  a  miscarriage  or  abortion,  or  for 
the  prevention  of  conception,  or  who  offers  his  services  by  any 
notice,  advertisement,  or  otherwise,  to  assist  in  the  accom- 
plishment of  any  such  purpose,  is  guilty  of  a  felony.  [New 
section  approved  March  30,  1874;  Amendments  1873-4,  p.  430. 
In  effect  July  1,  1874.1 

Enticing  to  place  of  gambling  or  prostitution. 

318.  Whoever,  through  invitation  or  device,  prevails  upon 
any  person  to  visit  any  room,  building,  or  other  places  kept 
for  the  purpose  of  gambling  or  prostitution,  is  guilty  of  a 
misdemeanor,  and,  upon  conviction  thereof,  shall  be  confined 
in  the  county  jail  not  exceeding  six  months,  or  fined  not  exceed- 
ing  five    hundred    dollars,    or    be    punished    by    both    such    fine 


CRIMES--35 


319-324  PENAL  CODE.  546 

and    imprisonment.     [New    section    approved    April    16,    1880; 
Amendments   1880,   p.   40.    In   effect  April   16,   1880.] 

CHAPTER  IX. 

LOTTERIES. 

Sec.    319.  Lottery  defined. 

320.  Punishment  for  drawing  lottery. 

821.  Pnnlshment  for  selling  lottery  tickets. 

322.  Aiding  lotteries. 

323.  Lottery  offices.    Advertising  lottery  offices. 

324.  Insuring  lottery  tickets.    Publishing  offers  to  Insure. 

325.  Property  offered  for  disposal  in  lottery  forfeited. 

326.  Letting  building  for  lottery  purposes. 

Lottery  defined. 

319.  A  lottery  is  any  scheme  for  the  disposal  or  distribu- 
tion of  property  by  chance,  among  persons  who  have  paid 
or  promised  to  pay  any  valuable  consideration  for  the  chance 
of  obtaining  such  property  or  a  portion  of  it,  or  for  any  share 
or  any  interest  in  such  property,  upon  any  agreement,  understand- 
ing, or  expectation  that  it  is  to  be  distributed  or  disposed  of 
by  lot  or  chance,  whether  called  a  lottery,  raffle,  or  gift  enter- 
prise, or  by  whatever  name  the  same  may  be  known. 

68  Cal.   289;   70  Cal.   633. 

Punishment  for  drawinq  lottery. 

320.  Every  person  who  contrives,  prepares,  sets  up,  pro- 
poses, or  draws  any  lottery,  is  guilty  of  a  misdemeanor. 

91    Cal,    440. 

Punishment  for  selling   lottery  tickets. 

321.  Every  person  who  sells,  giyes,  or  in  any  manner  what- 
ever, furnishes  or  transfers  to  or  for  .  ny  other  person  any 
ticket,  chance,  share,  or  interest,  or  any  paper,  certificate,  or 
instrument  purporting  or  understood  to  be  or  to  represent  any 
ticket,  chance,  share,  or  interest  in,  or  depending  upon  the  | 
event  of  any  lottery,  is  guilty  of  a  misdemeanor.  ( 

70    Cal.    633;    92   Cal.    652. 

Aiding  lotteries. 

322.  Every   person   who   aids   or  assists,   either   by   printing,  » 
writing,    advertising,    publishing,    or    otherwise     in    setting   up,  ' 
managing,   or   drawing  any  lottery,   or   in   selling  or   disposing 
of  any  ticket,   chance,  or  share  therein,   is  guilty  of  a  misde- 
meanor. 

Lottery  offices.     Advertising  lottery  offices. 

323.  Every  person  who  opens,  sets  up,  or  keeps,  by  himself 
or  by  any  other  person,  any  office  or  other  place  for  the  sale 
of,  or  for  registering  the  number  of  any  ticket  in  any  lottery, 
or  who,  by  printing,  writing,  or  otherwise,  advertises  or  pub- 
lishes the  setting  up,  opening,  or  using  of  any  such  office,  Is 
guilty  of  a  misdemeanor. 

Insuring  lottery  tickets.     Publishing  offers  to  insure. 

324.  Every  person  who  insures  or  receives  any  consideration 
for  Insuring  for  or  against  the  drawing  of  any  ticket  In  any 
lottery  whatever,  whether  drawn  or  to  be  drawn  within  this 
state  or  not,  or  who  receives  any  valuable  consideration  upon 
any  agreement  to  repay  any  sum,  or  deliver  the  same,  or  any 
other  property,   if  any  lottery  ticket  or  number  of  any  ticket 


547  LOTTERIES — GAMING.  825-330 

In  any  lottery  shall  prove  fortunate  or  unfortunate,  or  shall  he 
drawn  or  not  be  drawn,  at  any  particular  time  or  in  any  par- 
ticular order,  or  who  promises  or  agrees  to  pay  any  sum  of 
money,  or  to  deliver  any  goods,  things  in  action,  or  property, 
or  to  forbear  to  do  anything  for  the  benefit  of  any  person,  with 
or  without  consideration,  upon  any  event  or  contingency  depend- 
ent on  the  drawing  of  any  ticket  in  any  lottery,  or  who  pub- 
lishes any  notice  or  proposal  of  any  of  the  purposes  aforesaid, 
is  guilty  of  a  misdemeanor. 

Property  offered  for  disposal   in  lottery  forfeited. 

325.  All  moneys  and  property  offered  for  sale  or  distribu- 
tion in  violation  of  any  of  the  provisions  of  this  chapter  are 
forfeited  to  the  state,  and  may  be  recovered  by  information 
filed,  or  by  an  action  brought  by  the  attorney-general,  or  by 
any  district  attorney,  in  the  name  of  the  state.  Upon  the  fil- 
ing of  the  information  or  complaint,  the  clerk  of  the  court,  or  if 
the  suit  be  in  a  justice's  court,  the  justice,  must  issue  an  attach- 
ment against  the  property  mentioned  in  the  complaint  or 
information,  which  attachment  has  the  same  force  and  effect 
against  such  property,  and  is  issued  in  the  same  manner  as 
attachments  issued  from  the  district  courts  in  civil  cases. 

Letting  building  for  lottery  purposes. 

326.  Every  person  who  lets,  or  permits  to  be  used,  any  build- 
ing or  vessel,  or  any  portion  thereof,  knowing  that  it  is  to  be 
used  for  setting  up,  managing,  or  drawing  any  lottery,  or  for 
the  purpose  of  selling  or  disposing  of  lottery  tickets,  is  guilty 
of  a  misdemeanor, 

fiS   Cal.    2S9;    91   Cal.    440;    93   Cal.    439. 

CHAPTER  X. 
GAMING. 

Sec.    380.  Gaming  prohibitert.    Penalty. 

331.  Permitting  gambling  in  houses  owned  or  rented. 

332.  Winning  at  play  by  fraudulent  means. 

333.  Witnesses  neglecting  or  refusing  to  attend  trl&\. 

334.  Witness'    privilege. 

335.  Duties  of  district  attorneys,   sheriffs,  and  others. 

336.  Permitting  minor  to  play  in  saloon. 

337.  Pretending  tQ  give   authority   to   conduct   games. 

Gaming  prohibited.    Penalty. 

330.  Every  person  who  deals,  plays,  or  carries  on,  opens,  or 
causes  to  be  opened,  or  who  conducts,  either  as  owner  or 
employee,  whether  for  hire  or  not,  any  game  of  faro,  monte, 
roulette,  lansquenet,  rouge  et  noir,  rondo,  tan,  fan-tan,  stud- 
horse poker,  seven-and-a-half,  twenty-one,  hokey-pokey,  or  any 
banking  or  percentage  game  played  with  cards,  dice,  or  any 
device,  for  money,  checks,  credit,  or  other  representative  of 
value,  and  every  person  who  plays  or  bets  at  or  against  any 
of  said  prohibited  games,  is  guilty  of  a  misdemeanor,  and  shall 
be  punishable  by  a  fine  not  less  than  one  hundred  dollars  nor 
not  more  than  five  hundred  dollars,  or  by  imprisonment  in  the 
county  jail  not  exceeding  six  months,  or  by  both  such  fine  and 
imprisonment.  [Amendment  approved  March  10,  1891;  Stats. 
1891,  p.'  57.] 

47  Cal.  127;  .^3  Cal.  247;  60  Cal.  82;  63  Cal.  299; 

64  Cal.  157;  70  Cal.  516;  80  Cal.  155;  82  Cal.  182; 

84  Cal.  166;  85  Cal.  581;  86  Cal.  233;  128  Cal. 
29. 


331-337  PENAL  CODE.  548 

Permitting  gambling  in  houses  owned  or  rented. 

331.  Every  person  who  knowingly  permits  any  of  the  games 
mentioned  in  the  preceding  section  to  be  played,  conducted,  or 
dealt  in  any  house  owned  or  rented  by  such  person,  in  whole 
or  in  part,  is  punishable  as  provided  in  the  preceding  section. 

Winning  at  play  by  fraudulent  means. 

332.  Every  person  who  by  the  game  of  "three-card  monte," 
so-called,  or  any  other  game,  device,  sleight  of  hand,  preten- 
sions to  fortune-telling,  trick,  or  other  means  whatever,  by 
use  of  cards  or  other  implements  or  instruments,  or  while  bet- 
ting on  sides  or  hands  of  any  such  play  or  game,  fraudulently 
obtains  from  another  person  money  or  property  of  any  descrip- 
tion, shall  be  punished  as  in  case  of  larceny  of  property  of  like 
value.  [Amendment  approved  April  16,  1880;  Amendments 
1880,  p.  40.     In  effect  April  16,  1880.] 

107   Cal.    152;   110  Cal.    601;    122   Cal.    357. 

Witnesses  neglecting  or  refusing  to  attend  trial. 

333.  Every  person  duly  summoned  as  a  witness  for  the  prose- 
cution, on  any  proceedings  had  under  this  chapter,  who  neg- 
lects or  refuses  to  attend,  as  required,  is  guilty  of  a  misde- 
meanor. 

Witness'  privilege. 

334.  No  person,  otherwise  competent  as  a  witness,  is  dis- 
qualified from  testifying  as  such  concerning  the  offense  of  gam- 
ing, on  the  ground  that  such  testimony  may  criminate  him- 
self; but  no  prosecution  can  afterwards  be  had  against  him 
for  any   offense   concerning  which   he   testified. 

Duties  of  district  attorneys,  sheriffs,  and  others. 

335.  Every  district  attorney,  sheriff,  constable,  or  police  officer 
must  inform  against  and  diligently  prosecute  persons  whom 
they  have  reasonable  cause  to  believe  offenders  against  the 
provisions  of  this  chapter,  and  every  such  ofllcer  refusing  or 
neglecting  so  to  do,  is  guilty  of  a  misdemeanor. 

Permitting  minor  to  play  in  saloon. 

336.  Every  owner,  lessee,  or  keeper  of  any  house  used  in 
whole,  or  in  part,  as  a  saloon  or  drinking-place,  w,ho  know- 
ingly permits  any  person  under  twenty-one  years  of  age  to 
play  at  any  game  of  chance  therein,  is  guilty  of  a  misdemeanor. 
[New  section  approved  March  24,  1874;  Amendments  1873-4,  p. 
461.    In   effect   in   sixty   days.] 

Pretending  to  give  authority  to  conduct  games. 

337.  Every  state,  county,  city,  city  and  county,  town,  or 
township  officer,  or  other  person  who  shall  ask  for,  receive,  or 
collect  any  money,  or  other  valuable  consideration,  either  for 
his  own  or  the  public  use,  for  and  with  the  understanding  that 
he  will  aid,  exempt,  or  otherwise  assist  any  person  from  arrest 
oil  conviction  for  a  violation  of  section  three  hundred  and  thirty 
of  the  Penal  Code;  or  who  shall  issue,  deliver,  or  cause  to  be 
given  or  delivered  to  any  person  or  persons,  any  license,  permit, 
or  other  privilege,  giving,  or  pretending  to  give,  any  authority  or 
right  to  any  person  or  persons  to  ca^ry  on,  conduct,  open,  or 
cause  to  be  opened,  any  game  or  games  which  are  forbidden  or 
prohibited  by  section  three  hundred  and  thirty  of  said  Code; 
and  any  of  such  officer  or  officers  who  shall  vote  for  the  pass- 


549  PAWNBROKEKS.  338-342 

age  of  any  ordinance  or  by-law,  giving,  granting,  or  pretend- 
ing to  give  or  grant  to  any  person  or  persons  any  authority 
or  privilege  to  open,  carry  on,  conduct,  or  cause  to  be  opened, 
carried  on,  or  conducted,  any  game  or  games  proliibited  by  said 
section  tliree  hundred  and  thirty  of  the  Penal  Code,  is  guilty 
of  a  felony.  [New  section  approved  March  12,  1885.  Stats.  1885, 
p.    113.] 

CHAPTER  XI. 

PAWNBROKERS. 

Sec.    .338.  rawnI>rokiug  without  license. 

33y.  Failing  to   keep  a  register. 

340.  Charging  unlawful  rate  of  Interest. 

341.  Selling   before    time    of   redemption   has    expired,    or   without 

notice. 

342.  Refusing  to  disclose  particulars  of  sale. 

343.  Refusing    to   allow   an   officer   with   search-warrant   to   inspect 

register  of  pledged  articles. 

344.  Junk    dealers,    application    of    code    sections    to. 

Pawnbroking  without  license. 

338.  Every  person  who  carries  on  the  business  of  a  pawn- 
broker, Tsy  receiving  goods  in  pledge  for  loans  at  any  rate  of 
interest  above  the  rate  of  ten  per  cent,  per  annum,  except  by 
authority  of  a  license,  is  guilty  of  a  misdemeanor. 

Failing  to  keep  a  register. 

339.  Every  person  who  carries  on  the  business  of  a  pawn- 
broker, who  fails  at  the  time  of  the  transaction  to  enter  in  a 
register  kept  by  him  for  that  purpose,  in  the  English  language, 
the  date,  duration,  amount,  and  rate  of  interest  of  every  loan 
made  by  him,  or  an  accurate  description  of  the  property  pledged, 
or  the  name  and  residence  of  the  pledgor,  or  to  deliver  to  the 
pledgor  a  written  copy  of  such  entry,  or  to  keep  an  account 
in  writing  of  all  sales  made  by  him,  is  guilty  of  a  misdemeanor. 

Charging   unlawful   rate  of  interest. 

340.  Every  pawnbroker  who  charges  or  receives  interest  at 
the  rate  of  more  than  two  per  cent,  per  month,  or  who  by 
charging  commissions,  discount,  storage,  or  other  charge,  or  by 
compounding  increases,  or  attempts  to  increase,  such  interest, 
is  guilty  of  a  misdemeanor.  [Amendment,  approved  March  7, 
1881;    Amendments  1881,   p.  75.     In  effect  March  7,   1881.] 

67    Cal.    36«). 

Selling    before  time   of  redemption    has  expired,  or  without  no- 
tice. 

341.  Every  pawnbroker  who  sells  any  article  pledged  to  him 
and  unredeemed,  until  it  has  remained  in  his  possession  six 
months  after  the  last  day  fixed  by  contract  for  redemption,  or 
who  makes  any  sale  without  publishing  in  a  newspaper  printed 
in  the  city,  town,  or  county,  at  least  five  days  before  such  sale, 
a  notice  containing  a  list  of  the  articles  to  be  sold,  and  specify- 
ing the  time  and  place  of  sale,  is  guilty^of  a  misdemeanor. 

Refusing  to  disclose  particulars  of  sale. 

342.  Every  pawnbroker  who  wilfully  refuses  to  disclose  to 
the  pledgor  or  his  agent  the  name  of  the  purchaser  and  the 
price  received  by  him  for  any  article  received  by  him  in  pledge 
and   subsequently  sold,   or   who,   after   deducting  from  the  pro- 


343-347  PENAL  CODE.  660 

ceeds  of  any  sale  the  amount  of  the  loan  and  interest  due 
thereon,  and  four  per  cent,  on  the  loan  for  expenses  of  sale, 
refuses,  on  demand,  to  pay  the  balance  to  the  pledgor  or  his 
agent,  is  guilty  of  a  misdemeanor. 

Refusing   to   allow   an   officer    with    search    warrant  to    inspect 
register  of  pledged  articles. 

343.  Every  pawnbroker  who  fails,  refuses,  or  neglects  to  pro- 
duce for  inspection  his  register,  or  to  exhibit  all  articles  received 
liy  him  in  pledge,  or  his  account  of  sales,  to  any  officer  hold- 
ing a  warrant  authorizing  hipi  to  search  for  personal  property, 
or  the  order  of  a  committing  magistrate  directing  such  officer 
to  inspect  such  register,  or  examine  such  articles  or  account  of 
sales,  is  guilty  of  a  misdemeanor. 

Junk  dealers,   application   of  code   sections  to. 

344.  Sections  three  hundred  and  thirty-nine,  and  three  hun- 
dred and  forty-two,  and  three  hundred  and  forty-three  of  the 
Penal  Code  are  applicable  to  the  persons  carrying  on  the  busi- 
ness of  junk  dealers,  their  clerks,  employees,  or  servants,  and 
to  persons  acting  as  brokers  or  commission  agents  for  such 
persons,  and  apply  to  their  transactions  of  purchase  and  sale 
as  well  as  to  those  of  pledge  or  mortgage.     [Stats.  1901,  p.  75.] 


CHAPTER  XII. 
OTHER  INJURIES  TO  PERSONS. 

Sec.    346.  Acts  of  intoxicated  playsicians. 

347.  Wilfully  poisoning  food,  medicine,  or  water. 

348.  Mismanagement  of  steamboats. 

349.  Mismanagement   of   steam-boilers. 

350.  Counterfeiting  trade-marks. 

351.  Selling  goods  which   bear  counterfeit  trade-marks. 

352.  Definition  of  the   phrase   "counterfeited   trade-marks,"   etc. 

353.  "Trade-mark"   defined. 

354.  Refilling  casks,   etc.,    bearing  trade-mark. 

3544.  Selling  or   refilling   casks,   etc.,   containing  trade-mark. 
354|.  Destroying   or   defacing   trade-mark. 

355.  Defacing  marks  upon   wrecked  property  and  destroying  bills 

of  lading. 

356.  Defacing   marks  upon   logs,    lumber,   or  wood. 

357.  Changing  or  defacing  marks  or  brands  on  domestic  animals. 
357i.  Same. 

358.  Frauds  in  affairs  of  .special  partnership. 

359.  Contracting  or  solemnizing  incestuous  or  forbidden  marriages. 

360.  Making  false  return  or  record  of  marriage. 

361.  Cruel   treatment  of  lunatics,   etc. 

362.  Refusing  to  issue  or  obey  writ  of  habeas  corpus. 

363.  Reconfining   persons   discharged   upon    writ   of   habeas   corpus. 

364.  Concealing    persons   entitled    to   l>euefit   of   habeas   corpus. 

365.  Innkeepers   and    carriers    refusing    to    receive   guests. 

366.  Counterfeiting  quicksilver  stamps. 

367.  Selling  debased  quicksilver. 

Acts  of  intoxicated  physicians. 

346.  Every  physician  who,  in  a  state  of  intoxication,  does 
any  act  as  such  physician  to  another  person  by  which  the  life 
of  such  other  person  is  endangered,  is  guilty  ot  a  misdemeanor. 

Wilfully  poisoning  food,  medicine,  or  water. 

347.  Every  person  who  wilfully  mingles  any  poison  with  any 
food,  drink,  or  medicine,  with  intent  that  the  same  shall  be 
taken  by  any  human  being,  to  his  injury,  and  every  person  who 


551  OTHER  INJURIES  TO  PERSONS.  348-351 

wilfully  poisons  any  spring,  well,  or  reservoir  of  water,  is  pun- 
ishable by  imprisonment  in  the  state  prison  for  a  term  not  less 
than  one  nor  more  than  ten  years. 

Mismanagement  of  steamboats. 

348.  Every  captain  or  other  person  having  charge  of  any 
steamboat  used  for  the  conveyance  of  passengers,  or  of  the 
boilers  and  engines  thereof,  who,  from  ignorance  or  gross  neg- 
lect, or  for  the  purpose  of  excelling  any  other  boat  in  speed, 
creates,  or  allows  to  be  created,  ■  such  an  undue  quantity  of 
steam  as  to  burst  or  break  the  boiler,  or  any  apparatus  or 
machinery  connected  therewith,  by  which  bursting  or  breaking 
human  life  is  endangered,  is  guilty  of  a  felony.  [Amendment 
approved  March  30,  1874:  Amendments  1873-4,  p.  431.  In  effect 
July  1,  1874.]  • 

Mismanagement  of  steam-boilers. 

349.  Every  engineer  or  other  person  having  charge  of  any 
steam-boiler,  steam-engine,  or  other  apparatus  for  generating 
or  employing  steam,  used  in  any  manufactory,  railway,  or  other 
mechanical  works,  who  wilfully,  or  from  ignorance,  or  gross 
neglect,  creates,  or  allows  to  bo  created,  such  an  undue  quantity 
of  steam  as  to  burst  or  break  the  boiler  or  engine,  or  apparatus, 
or  cause  any  other  accident  whereby  human  life  is  endangered, 
is  guilty  of  a  felony.  [Amendment  approved  March  30,  1874; 
Amendments,    1873-4,    p.    431.     In    effect   July    1,    1874.] 

Counterfeiting  trademarks. 

350.  Every  person  who  wilfully  reproduces,  copies,  imitates, 
forges,  or  counterfeits,  or  procures  to  be  reproduced,  copied, 
imitated,  forged,  or  counterfeited,  any  trademark  usually  affixed 
by  any  person  to  his  goods,  which  has  been  duly  recorded  In 
the  office  of  the  secretary  of  state,  or  with  the  commissioner 
of  patents  in  the  United  States  patent  office,  or  any  label  or 
brand,  composed  in  whole  or  in  part  of  a  reproduction  of  said 
trademark,  or  who  affixes  the  same  to  goods  of  essentially  the 
same  descriptive  properties  and  qualities  as  those  referred  to 
in  the  registration  of  such  trademark,  with  intent  to  pass  off, 
or  to  assist  other  persons  to  pass  off,  any  goods  to  which  such 
reproduced,  copied,  imitated,  forged,  or  counterfeited  trademark, 
or  label,  or  brand  is  affixed,  or  intended  to  be  affixed,  as  the 
goods  of  the  person,  firm,  company,  or  corporation  owning  the 
said  trademark,  is  guilty  of  a  misdemeanor.  [Amendment 
approved  March  27,  1897;    Stats.  1897,  p.  212.] 

Selling  goods  which  bear  counterfeit  trademarks. 

351.  Every  person  who  sells,  or  keeps  for  sale,  or  manufac- 
tures or  prepares,  for  the  purpose  of  sale,  any  goods  upon  or 
to  which  any  reproduced,  copied,  imitated,  forged,  or  counter- 
feited trademark,  or  label,  or  brand,  composed  in  whole  or  in 
part  of  such  a  reproduced,  copied,  imitated,  forged,  or  counter- 
feited trademark,  has  been  affixed,  after  such  trademark  has 
been  recorded  in  the  office  of  the  secretary  of  state,  or  with 
the  commissioner  of  patents  in  the  United  States  patent  office, 
intending  to  represent  such  goods  as  the  genuine  goods  of  the 
person,  firm,  company,  or  corporation  owning  the  said  trade- 
mark, knowing  the  same  to  be  reproduced,  copied,  imitated, 
forged,  or  counterfeited,  is  guilty  of  a  misdemeanor.  [Amend- 
ment approved  March  27,  1897;   Stats.  1897,  p.  213.] 


352-35i|  PENAL  CODE.  552 

Definition  of  the  phrase  "counterfeited  trademark,"  etc. 

352.  The  phrases  "forged  trademark"  and  "counterfeited 
trademark,"  or  their  equivalents,  as  used  in  this  chapter,  include 
every  alteration  or  imitation  of  any  trademark  so  resembling 
the  original  as  to  be  likely  to  deceive. 

"Trademark"  defined. 

353.  The  phrase  "trademark,"  as  used  in  the  three  preced- 
ing sections,  includes  every  description  of  word,  letter,  device, 
emblem,  stamp,  imprint,  brand,  printed  ticket,  label,  or  wrap- 
per usually  affixed  by  any  mechanic,  manufacturer,  druggist, 
merchant,  or  tradesman,  to  denote  any  goods  to  be  goods 
imported,  manufactured,  produced,  compounded,  or  sold  by  him, 
other  than  any  name,  word,  or  expression  generally  denoting 
any  goods  to  be  of  some  particular  class  or  description. 

Refilling  casks,  etc.,  bearing  trademark. 

354.  Every  person  who  has  in  his  possession,  or  who  uses 
any  cask,  bottle,  vessel,  case,  cover,  label,  brand,  or  other 
thing  bearing,  or  having  in  any  way  connected  with  it,  the 
trademark  of  another,  which  has  been  duly  recorded  in  the 
office  of  the  secretary  of  state,  or  with  the  commissioner  of 
patents  in  the  United  States  patent  office,  or  the  trade  name 
of  another,  for  the  purpose  of  disposing  of  any  article  other 
than  that  which  such  cask,  bottle,  vessel,  case,  cover,  label, 
brand,  or  other  thing  originally  contained,  or  is  connected  with 
by  the  owner  of  such  trademark  or  trade  name,  with  intent  to 
deceive  or  defraud,  is  guilty  of  a  misdemeanor.  [Amendment 
approved  March  27,  1897;  Stats.  1897,  p.  213.1 

Selling  or  refilling  casks,  etc.,  containing  trademark. 

354V^.  Every  person  who  wilfully  sells,  or  traffics  in  any 
cask,  keg.  bottle,  vessel,  siphon,  can,  case,  or  other  package 
bearing  the  duly  filed  trademark  or  name  of  another,  printed, 
branded,  stamped,  engraved,  etched,  blown,  or  otherwise 
attached  or  produced  thereon,  or  refills  any  such  cask,  keg, 
bottle,  vessel,  siphon,  can,  case,  or  other  package  with  intent 
to  defraud  the  owner  thereof,  without  the  consent  of  the  owner 
thereof,  or  unless  the  same  shall  have  been  purchased  from  the 
owner  thereof,  is  guilty  of  a  misdemeanor.  [In  effect  sixty  days 
from  March  14,  1899;   Stats.  1899,  p.  103.  | 

Destroying  or  defacinn  trademark. 

354%.  Every  person  who  shall  wilfully  deface,  erase,  oblit- 
erate, cover  up,  or  otherwise  remove,  destroy,  or  conceal  the 
duly  filed  trademark  or  name  of  another,  printed,  branded, 
stamped,  engraved,  etched,  blown,  impressed,  or  otherwise 
attached  to,  or  produced  upon  any  cask,  keg,  bottle,  vessel, 
siphon,  can,  case,  or  other  package,  for  the  purpose  of  selling 
or  trafficking  in  such  cask,  keg,  bottle,  vessel,  siphon,  can, 
case,  or  other  package,  or  refilling  such  cask,  keg,  bottle, 
vessel,  siphon,  can,  case,  or  other  package,  with  intent  to 
defraud  the  owner  thereof,  without  the  consent  of  the  owner, 
or  unless  the  same  shall  have  been  purchased  from  the  owner, 
is  guilty  '^f  a  misdemeanor.  [In  effect  sixty  days  from  March 
9,  1899;  Stats.  1899,  p.  87.1 


553  OTHER   INJURIES  TO  PERSONS.  355-862 

Defacing   marks  upon  wrecked   property  and  destroying  bills  of 
lading. 

355.  Every  person  who  defaces  or  obliterates  the  marks  upon 
wrecked  property,  or  in  any  manner  disguises  the  appearance 
thereof,  with  intent  to  prevent  the  owner  from  discovering  its 

identity,  or  who  destroys  or  suppresses  any  invoice,  bill  of 
lading,  or  other  document  tending  to  show  the  ownership,  is 
guilty  of  a  misdemeanor. 

Defacing  marks  upon   logs,  lumber  or  wood. 

356.  Every  person  who  cuts  out,  alters,  or  defaces  any  mark 
made  upon  any  log,  lumber,  or  wood,  or  puts  a  false  mark 
thereon  with  intent  to  prevent  the  owner  from  discovering  its 
identity,  is  guilty  of  a  misdemeanor. 

128   Cal.    ii-i. 

Changing  or  defacing   marks  or  brands  on   domestic  animals. 

357.  Every  person  who  marks  or  brands,  alters,  or  defaces 
the  mark  or  brand  of  any  horse,  mare,  colt,  jack,  jennet,  mule, 
l3ull,  ox,  steer,  cow,  or  calf  belonging  to  another,  with  intent 
thereby  to  steal  the  same,  or  to  prevent  identification  thereof 
by  the  true  owner,  is  punishable  by  imprisonment  in  the  state's 
prison  for  not  less  than  one  nor  more  than  five  years.  [Stats. 
1901,  p.  329.] 

Same. 

35714.  Every  person  who  marks  or  brands,  alters  or  defaces 
the  mark  or  brand  of  any  sheep,  goat,  hog,  shoat,  or  pig  belong- 
ing to  another,  with  intent  thereby  to  steal  the  sapie,  or  to 
prevent  identification  thereof  by  the  true  owner,  is  guilty  of  a 
misdemeanor.     [Stats.  1901,  p.  327.] 

Frauds   in  affairs  of  special   partnership. 

358.  Every  member  of  a  special  partnership  who  commits 
any  fraud  in  the  affairs  of  the  partnership,  is  guilty  of  a  mis- 
demeanor. 

Contracting  or  solemnizinrj  incestuous  or  forbidden  marriages. 

359.  Every  person  authorized  to  solemnize  marriage,  who  wil- 
fully and  knowingly  solemnizes  any  incestuous  or  other  mar- 
riage forbidden  by  law,  is  punishable  by  fine  of  not  less  than 
one  hundred  nor  more  than  one  thousand  dollars,  or  by  imprison- 
ment in  the  county  jail  not  less  than  three  months,  nor  more 
than  one  yfear,  or  by  both. 

75    Cal.    12. 

Making  false  return  or  record  of  marriage. 

360.  Every  person  authorized  to  solemnize  any  marriage,  who 
wilfully  makes  a  false  return  of  any  marriage  or  pretended  mar- 
riage to  the  recorder,  and  every  person  who  wilfully  makes  a 
false  record  of  any  marriage  return,  is  punishable  as  provided 
in  the  preceding  section. 

7".    Cal.    12. 

Cruel  treatment  of   lunatics,  etc. 

361.  Every  person  guilty  of  any  harsh,  cruel,  or  unkind 
treatment  of,  or  any  neglect  of  duty  towards,  any  idiot,  lunatic, 
or  insane  person,  is  guilty  of  a  misdemeanor. 

Refusing  to  issue  or  obey  writ  of  habeas  corpus. 

362.  Every  ofiicer  or  person  to  whom  a  writ  of  habeas  corpus 


363-367  PENAL  CODE.  554 

may  be  directed,  who,  after  service  thereof,  neglects  or  refuses 
to  obey  the  command  thereof,  is  guilty  of  a  misdemeanor. 

Reconfining  persons  discharged   upon  writ  of  habeas  corpus. 

363.  Every  person  who,  either  solely  or  as  member  pf  a 
court,  knowingly  and  unlawfully  recommits,  imprisons,  or 
restrains  of  his  liberty,  for  the  same  cause,  any  person  who 
has  been  discharged  upon  a  writ  of  habeas  corpus,  is  guilty 
of  a  misdemeanor. 

Concealing  persons  entitled  to  benefit  of  habeas  corpus. 

364.  Every  person  having  in  his  custody,  or  under  his  restraint 
or  power,  any  person  for  whose  relief  a  writ  of  habeas  corpus 
has  been  issued,  who,  with  the  intent  to  elude  the  service  of 
such  writ  or  to  avoid  the  effect  thereof,  transfers  such  person 
to  the  custody  of  another,  or  places  him  under  me  power  or 
control  of  another,  or  conceals  or  changes  the  place  of  his 
confinement  or  restraint,  or  removes  him  without  the  jurisdic- 
tion of  the  court  or  judge  issuing  the  writ,  is  guilty  of  a  mis- 
demeanor. 

Innkeepers  and  carriers  refusing  to  receive  guests. 

365.  Every  person,  and  every  agent  or  officer  of  any  corpora- 
tion carrying  on  business  as  an  inn-keeper,  or  as  a  common 
carrier  of  passengers,  who  refuses,  without  just  cause  or  excuse, 
to  receive  and  entertain  any  guest,  or  to  receive  and  carry  any 
passenger,  is  guilty  of  a  misdemeanor. 

Counterfeiting  quicksilver  stamps. 

366.  Every  person  who  counterfeits,  or  who  wilfully  uses  the 
counterfeited  seal  or  stamp  of  any  person  engaged  in  manufac- 
turing  or   selling  quicksilver,  is  guilty   of  a  felony. 

Selling  debased  quicksilver. 

367.  Every  person  who  wilfully  sells,  or  offers  for  sale  as 
pure,  any  debased  or  adulterated  quicksilver,  is  guilty  of  a  mis- 
demeanor. 


555  CRIMES  AGAINST  PUBLIC  HEALTH.  368-369' 

TITLE  X. 
OF  CRIMES  AGAINST  THE  PUBLIC  HEALTH  AND  SAFETY. 

Sec.    368.  Death  from  explosions,   etc. 

309.  Death  from  collision  on  railroads. 

370.  "Pul)lic  nuisances"  defined. 

371.  Unequal   damage. 

372.  Maintaining  a  nuisance,  a  misdemeanor. 

373.  Estal)lishing  or  lieeplng  pest-houses  within  cities,   town.s,  etc. 

374.  Putting  dead   animals  in  streets,    rivers,   etc. 
374i.  Discharging    coal    tar,    etc.,   into  water. 

375.  Keeping  gunpowder,  etc.,  unlawfully. 

376.  Violation    of   quarantine   laws   by    masters  of  vessels. 
.377.  Wilful    violation   of   health    laws. 

378.  Neglecting   to   perform  duties  under   health   law. 

379.  Unlicensed   piloting. 

380.  Apothecary  omitting  to  label  drugs,   or  labeling  them  wrong- 

fully,  etc. 

381.  I'utting   extraneous   substances   in   packages   of   goods  usually 

sold  b.v  weight,  witli  intent  to  increase  weight. 
381a.  Penalty    for    rendering    inaccurate,    incorrect,    or    false    tests 
as   to    dairy    products. 

382.  Adulterating  foods,   drugs,    liquors,   etc. 

383.  Disposing  of  tainted  food,   etc. 

384.  Setting   woods  on   fire. 

385.  Olistructing  attempts  to  extinguish  fires. 

386.  Maintaining   bridge  or  ferry    without   authority. 

387.  Violating  condition  of  undertaliing  to  lieep  ferry. 

388.  Riding  oil  driving  faster  than   a  walk  on  toll-bridges. 

389.  Crossing  toll-bridges,  etc.,   without  paying  toll. 

390.  Engineer    of    locomotive    engine    omitting    to    ring    bell    when 

crossing  highwaj'. 

391.  Intoxication  of  engineers,  conductors,  or  drivers  of  locomotives 

or  cars. 

392.  Placing  passenger  cars  in  front  of  freight  cars. 

.393.    Violation  of  duty  of  employees  of  railroad  companies. 

394.  Exposing    person   infected    with   any    contagious    disease    in    a 

public  place. 

395.  Frauds  practiced  to  affect  the  market  price. 

396.  Racing  upon  highways. 

397.  Selling  liquor  to  Indian  or    common    drunkard. 

398.  Selling   firearms   and    ammunition    to    Indians. 

399.  Death  from  mischievous  animals. 

400.  Exhibiting  deformities  of  person. 

400.    Aiding  or  encouraging  suicide   a   felony. 
402.    Using  or  exposing  animals  witli  glanders. 
402*.  Animal  having  glanders  to  be  killed. 
402i.   Adulterating  candy. 

Death  from  explosions,  etc. 

368.  Every  person  having  charge  of  any  steam-boiler  or 
steam-engine,  or  other  apparatus  for  generating  or  employing 
steam,  used  in  any  manufactory,  or  on  any  railroad,  or  in  any 
vessel,  or  in  any  kind  of  mechanical  work,  who  wilfully,  or  from 
ignorance  or  neglect,  creates,  or  allows  to  be  created,  such  an 
undue  quantity  of  steam  as  to  burst  or  break  the  boiler,  engine, 
or  apparatus,  or  to  cause  any  other  accident  whereby  the  death 
of  a  human  being  is  produced,  is  punishable  by  imprisonment 
in  the  state  prison  for  not  less  than  one  nor  more  than  ten 
years. 

Death  from  collision  on  railroads. 

369.  Every  conductor,  engineer,  brakeman,  switchman,  or 
other  person  having  charge,  wholly  or  in  part,  of  any  railroad, 
car,  locomotive,  or  train,  who  wilfully  or  negligently  suffers 
or  causes  the  same  to  collide  with  another  car,  locomotive,  or 
train,  or  with  any  other  object  or  thing  whereby  the  death  ot 
a  human  being  is  produced,  is  punishable  by  imprisonment  in 
the  state  prison  for  not  less  than  one  nor  more  than  ten  years* 


^370-374  PKNAL  CODE.  556 

"Public  nuisances"  defined. 

370.  Anything  which  is  injurious  to  health,  or  is  indecent, 
or  offensive  to  the  senses,  or  an  obstruction  to  the  free  use  of 
property,  so  as  to  interfere  with  the  comfortable  enjoyment  of 
life  or  property  by  an  entire  community  or  neighborhood,  or 
by  any  considerable  number  of  persons,  or  unlawfully  obstructs 
the  free  passage  or  use,  in  the  customary  manner,  of  any  nav- 
igable lake,  or  river,  bay,  stream,  canal,  or  basin,  or  any  public 
park,  square,  street,  or  highway,  is  a  public  nuisance.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873-4,  p.  431.  In 
effect  July  1,  1874.1 

68  Cal.  413;  72  Cal.  53;  87  Cal.  92;  92  Cal.  574; 
107  cal.  481;  113  Cal.  150;  116  Cal.  399;  121 
Cal.  513. 

Unequal  damage. 

371.  An  act  which  affects  an  entire  community  or  neighbor- 
hood, or  any  considerable  number  of  persons,  as  specified  in  the 
last  section,  is  not  less  a  nuisance  because  the  extent  of  the 
annoyance  or  damage  inflicted  upon  individuals  is  unequal. 
[Amendment  approved  March  30,  1874;  Amendments  1873-4,  p. 
432.    In  effect  July  1,  1874.] 

Maintaining  a  nuisance,  a  misdemeanor. 

372.  Every  person  who  maintains  or  commits  any  public  nui- 
sance, the  punishment  for  which  is  not  otherwise  prescribed, 
or  who  wilfully  omits  to  perform  any  legal  duty  relating  to  the 
removal  of  a  public  nuisance,   is  guilty  of  a  misdemeanor. 

72   Cal.    52;    87   Cal.    92;    92   Cal.   -574. 

Establishing  oV  keeping  pest-houses  within  cities,  towns,  etc. 

373.  Every  person  who  establishes  or  keeps,  or  causes  to  be 
established  or  kept,  within  the  limits  of  any  city,  town,  or  vil- 
lage, any  pest-house,  hospital,  or  place  for  persons  affected  with 
contagious  or  infectious  diseases,  is  guilty  of  a  misdemeanor. 

Putting  dead  animals  in  streets,  rivers,  etc. 

374.  Every  person  who  puts  the  carcass  of  any  aead  animal, 
or  the  offal  from  any  slaughter  pen,  corral,  or  butcher-shop,  into 
any  river,  creek,  pond,  reservoir,  stream,  street,  alley,  public 
highway,  or  road  in  common  use,  or  who  attempts  to  destroy 
the  same  by  fire  within  one-fourth  of  a  mile  of  any  city,  town, 
or  village,  except  it  be  in  a  cemetery,  the  construction  and 
operation  of  which  is  satisfactory  to  the  board  of  health  in 
such  city,  town,  or  village;  and  any  persoij  who  puts  any 
water-closet  or  privy,  or  the  carcass  of  any  dead  animal,  or  any 
offal  of  any  kind,  in  or  upon  the  borders  of  any  stream,  pond, 
lake,  or  reservoir  from  which  water  is  drawn  for  the  supply  of 
the  inhabitants  of  any  city,  city  and  county,  or  any  town  in  this 
state,  so  that  the  drainage  from  such  water-closet,  privy,  car- 
cass, or  offal  may  be  taken  up  by  or  in  such  stream,  pond,  lake, 
or  reservoir;  or  who  allows  any  water-closet  or  pfivy,  or  car- 
cass of  any  dead  animal,  or  any  offal  of  any  kind,  to  remain  in 
or  upon  the  borders  of  any  such  stream,  pond,  lake,  or  reser- 
voir within  the  boundaries  of  any  land  owned  or  occupied  by 
him,  so  that  the  drainage  from  such  water-closet,  privy,  car- 
cass, or  offal  may  be  taken  up  by  or  in  such  stream,  pond,  lake, 
or  reservoir;  or  who  keeps  any  horses,  mules,  cattle,  swine, 
sheep,  or  livestock  of  any  kind,  penned,  corralled,  or  housed 
on,  over,  or  on  the  borders  of  any  such  stream,  pond,  lake,  or 


557  CRIMES  AGAINST  PUBLIC  HEALTH.  374^-87T 

reservoir,  so  that  the  waters  thereof  shall  become  polluted  by 
reason  thereof;  or  who  bathes  in  any  such  stream,  pond,  lake, 
or  reservoir;  or  who  by  any  other  means  fouls  or  pollutes  the- 
waters  of  any  such  stream,  pond,  lake,  or  reservoir.  Is  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  pun- 
ished as  prescribed  in  section  three  hundred  and  seventy-seven 
of  this  code.  [Amendment  approved  March  3,  1893;  Stats.  1893, 
p.  66.    In  effect  immediately.] 

105   Cal.    637;    107   Cal.    226;    115   Oal.    450. 

Discharging  coal  tar,  etc.,  into  water. 

3741/^.  Every  person,  firm,  association,  or  corporation  which 
shall  discharge  or  deposit,  or  shall  cause  or  suffer  to  be  dis- 
charged or  deposited,  or  to  pass,  in  or  into  the  waters  of  any 
navigable  bay,  or  river,  in  this  state,  any  coal  tar  or  refuse  or 
residuary  product  of  coal,  petroleum,  asphalt,  bitumen,  or  other 
carbonaceous  material  or  substance,  is  guilty  of  a  misdemeanor, 
and  for  each  offense  is  punishable  by  imprisonment  in  the  county 
jail. for  not  exceeding  one  year,  or  by  fine  not  exceeding  one 
thousand  dollars,  or  by  both  such  fine  and  imprisonment. 
[Stats.   1901,   p.   813.] 

Keeping  gunpowder,  etc.,  unlawfully. 

375.  Every  person  who  makes  or  keeps  gun-powder,  nitro- 
glycerine, or  other  highly  explosive  substance,  within  any  city 
or  town,  or  who  carries  the  same  through  the  streets  thereof,  in 
any  quantity  or  manner  such  as  is  prohibited  by  law,  or  by  any 
ordinance  of  such  city  or  town,  is  guilty  of  a  misdemeanor. 

Violation  of  quarantine  laws  by  masters  of  vessels. 

376.  Every  master  of  a  vessel  subject  to  quarantine  or  visita- 
tion by  the  quarantine  officer,  arriving  in  the  port  of  San  Fran- 
cisco, who  refuses  or  omits: 

1.  To  proceed  with  and  anchor  his  vessel  at  the  place  assigned 
for  quarantine    at  the  time  of  his  arrival;   or 

2.  To  submit  his  vessel,  cargo,  and  passengers  to  the  exam- 
ination of  the  quarantine  ofl^cer,  and  to  furnish  all  necessary 
information  to  enable  that  oflicer  to  determine  to  what  length 
of  quarantine  and  other  regulations  they  ought,  respectively,  to 
be  subject;  or 

3.  To  remain  with  his  vessel  at  the  quarantine  during  the 
period  assigned  for  her  quarantine,  and  while  at  quarantine  to 
comply  with  the  regulations  prescribed  by  law,  and  with  such 
as  any  of  the  officers  of  health,  by  virtue  of  authority  given 
them  by  law,  shall  prescribe  in  relation  to  his  vessel,  his  cargo, 
himself,  his  passengers  or  crew — is  punishable  by  imprison- 
ment in  the  county  jail  not  exceeding  one  year,  or  by  fine  not 
exceeding  two  thousand  dollars,  or  both.  [Amendment  approved 
March  9,  1878;  Amendments  1877-8,  p.  116.  In  effect  March  9, 
1878.] 

Wilful  violation  of  health   laws. 

377.  Every  person  who  is  charged  with  a  duty  relating  to  the 
registration  of  deaths,  under  chapter  three,  title  seven,  of  the 
act  to  establish  a  Political  Code,  approved  March  twelfth,  1872, 
who — 

1.  Wilfully  fails  to  keep  a  registry  of  the  name,  age,  residence, 
and  time  of  death  of  a  decendent;  or, 

2.  Wilfully  fails  to  register  with  the  county  recorder  a  certi- 


378-381  PENAL  CODE.  558 

fled  copy  of  such  register,  as  is  provided  for  in  said  chapter;  or, 

3.  Wilfully  inters,  cremates,  or  otherwise  disposes  of  any 
human  body,  in  any  city,  county,  or  city  and  county,  without 
having  first  obtained  a  permit,  as  provided  for  in  said  chapter; 
or, 

4.  Wilfully  grants  a  permit  for  the  interment,  cremation,  or 
disposition  of  a  dead  human  body,  without  the  certificate  pro- 
vided for  in  said  chapter;   or, 

5.  Wilfully  violates  any  of  the  laws  of  this  state  relating  to 
the  preservation  of  the  public  health; 

Is  guilty  of  a  misdemeanor,  and  is,  unless  a  different  punish- 
ment for  such  violation  is  prescribed  by  this  code,  punishable 
by  imprisonment  in  the  county  jail  not  exceeding  one  year,  or 
by  fine  not  exceeding  one  thousand  dollars,  or  by  both  such  fine 
and  imprisonment.  [Amendment  approved  February  25,  1889; 
Stats.  1889,  p.  34.] 

68   Cal.    413;    84   Cal.   306. 

Neglecting  to  perform  duties  under  health  law. 

378.  Every  person  charged  with  the  performance  of  any  duty 
under  the  laws  of  this  state  relating  to  the  preservation  of  the 
public  health,  who  wilfully  neglects  or  refuses  to  perform  the 
same,  is  guilty  of  a  misdemeanor. 

84    Cal.    310. 

Unlicensed  piloting. 

379.  Every  person,  not  the  master  or  owner,  or  not  author- 
ized to  act  as  pilot  under  the  laws  of  this  state,  who  pilots  or 
offers  to  pilot  any  vessel  to  or  from  any  port  of  this  state  for 
which  there  are  commissioned  or  licensed  pilots,  or  who  pilots 
or  offers  to  pilot  any  vessel  to  or  from  any  port  other  than  that 
for  which  he  is  commissioned  or  licensed,  and  for  which  there 
are  pilots  so  commissioned  or  licensed,  i»^  guilty  of  a  misde- 
meanor. [Amendment  approved  March  30,  1874;  Amendments 
1873-4,  p.  432.     In  effect  July  1,  1874.] 

Apothecary   omitting   to    label    drugs,   or    labeling   them   wrong- 
fully, etc. 

380.  Every  apothecary,  druggist,  or  person  carrying  on  busi- 
ness as  a  dealer  in  drugs  or  medicines,  or  person  employed  as 
clerk  or  salesman  by  such  person,  who,  in  putting  up  any  drugs 
or  medicines,  or  making  up  any  prescription,  or  filling  any 
order  for  drugs  or  medicines,  wilfully,  negligently,  or  ignorantly 
omits  to  label  the  same,  or  puts  an  untrue  label,  stamp,  or 
other  designation  of  contents,  upon  any  box,  bottle,  or  other 
package  containing  any  drugs  or  medicines,  or  substitutes  a 
different  article  for  any  article  prescribed  or  ordered,  or  puts 
up  a  greater  or  less  quantity  of  any  article  than  that  prescribed 
or  ordered,  or  otherwise  deviates  from  the  terms  of  the  pre- 
scription or  order  which  he  undertakes  to  follow,  in  consequence 
of  which  human  life  or  health  is  endangered,  is  guilty  of  a 
misdemeanor,  or  if  death  ensues,  is  guilty  of  a  felony. 

Putting  extraneous  substances  in  packages  of  goods  usually  sold 
by  weight,  with  intent  to  increase  weight, 

381.  Every  person  who,  in  putting  up  in  any  bag,  bale,  box, 
barrel,  or  other  package,  any  hops,  cotton,  wool,  grain,  hay, 
or  other  goods  usually  sold  in  bags,  bales,  boxes,  barrels,  or 
packages  by  weight,  puts  in  or  conceals  therein  anything  what- 


559  CRIMES  AGAINST  PUBLIC  HEALTH.  381a-386 

«ver,  for  the  purpose  of  increasing  the  weight  of  such  Ijag,  bale, 
box,  barrel,  or  package,  with  intent  thereby  to  sell  the  goods 
therein  or  to  enable  another  to  sell  the  same,  for  an  increased 
weight,  is  •punishable  by  fine  of  not  less  than  twenty-five  dollars 
for  each  offense.  [Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  432.     In  effect  July  1,  1874.1 

Penalty  for  rendering  inaccurate,  incorrect,  or  false  tests  as  to 
dairy  products.  ^ 

381a.  Any  person,  or  persons,  whether  as  principals,  agents, 
managers,  or  otherwise,  who  buy  or  sell  dairy  products,  or  deal 
in  milk,  cream  or  butter,  and  who  buy  or  sell  the  same  upon 
the  basis  of  their  richness  or  weight  or  the  percentage  of 
cream,  or  butter-fat  contained  therein,  who  use  any  apparatus, 
test  bottle  or  other  appliance,  or  who  use  the  "Babcock  test" 
or  machine  of  like  character  for  testing  such  dairy  products, 
cream  or  butter,  which  is  not  accurate  and  correct,  or  which 
gives  wrong  or  false  percentages,  or  which  is  calculated  in  any 
way  to  defraud  or  injure  the  person  with  whom  he  deals,  is 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
not  more  than  five  hundred  dollars  ($500.00)  or  imprisoned  in  the 
county  jail  not  more  than  six  (6)  months.     [Stats.  1901,  p.  324.1 

Adulterating  food,  drugs,  liquors,  etc. 

382.  Every  person  who  adulterates  or  dilutes  any  article  of 
food,  drink,  drug,  medicine,  spirituous  or  malt  liquor,  or  wine, 
or  any  article  liseful  in  compounding  them,  with  a  fraudulent 
intent  to  offer  the  same  or  cause  or  permit  it  to  be  offered  for 
sale  as  unadulterated  or  undiluted,  and  every  person  who  fraud- 
ulently sells,  or  keeps  or  offers  for  sale  the  same,  as  unadul- 
terated or  undiluted,  is  guilty  of  a  misdemeanor. 

Disposing  of  tainted  food,  etc. 

383.  Every  person  who  knowingly  sells,  or  keeps  or  offers 
for  sale,  or  otherwise  disposes  of  any  article  of  fooa,  drink,  drug, 
or  medicine,  knowing  that  the  same  has  become  tainted, 
decayed,  spoiled,  or  otherwise  unwholesome  or  unfit  to  be  eaten 
or  drank,  with  intent  to  permit  the  same  to  be  eaten  or  drank, 
is  guilty  of  a  misdemeanor. 

126    Cal.    367. 

Setting  woods  on  fire. 

384.  Every  person  who  wilfully  or  negligently  sets  on  fire,  or 
causes  or  procures  to  be  set  on  fire,  any  woods,  prairies,  grasses, 
or  grain,  on  any  lands,  is  guilty  of  a  misdemeanor. 

90   Cal.    107;    98    Cal.    270. 

Obstructing  attempts  to  extinguish  fires. 

385.  Every  person  who,  at  the  burning  of  a  building,  dis- 
obeys the  lawful  orders  of  any  public  officer  or  fireman,  or  offers 
any  resistance  to  or  interference  with  the  lawful  efforts  of  any 
fireman  or  company  of  firemen  to  extinguish  the  same,  or  engages 
in  any  disorderly  conduct  calculated  to  prevent  the  same  from 
being  extinguished,  or  who  forbids,  prevents,  or  dissuades  others 
from  assisting  to  extinguish  the  same,  is  guilty  of  a  misde- 
meanor. 

Maintaining   bridge  or  ferry  without  authority, 

386.  Every  person  who  demands  or  receives  compensation  for 
the  use  of  any  bridge  or  ferry,  or  sets  up  or  keeps  any  road. 


387-oi)4  PKNAL  CODE.  560 

bridge,  ferry,  or  constructed  ford  for  the  purpose  of  receiving 
any  remuneration  for  the  use  of  the  same,  without  authority  of 
law,  is  guilty  of  a  misdemeanor.  * 

Violating  condition  of  undertaking  to   keep  ferry. 

387.  Every  person  who,  having  entered  into  an  undertaking  to 
keep  and  attend  a  ferry,  violates  the  conditions  of  such  under- 
taking, is  guilty  of  a  misdemeanor. 

Riding  or  driving  faster  than  a  walk  on  toll-bridges. 

388.  Every  person  who  wilfully  rides  or  drives  raster  than  a 
walk  on  or  over  any  toll-bridge,  lawfully  licensed,  is  punishable 
by  fine  not  exceeding  twenty  dollars. 

Crossing  toll-bridges,  etc.,  without  paying  toll. 

389.  Every  person  not  exempt  from  paying  tolls,  wHo  crosses 
on  any  ferry  or  toll-bridge,  or  passes  through  any  toll-gate,  law- 
fully kept,  without  paying  the  toll  therefor,  and  with  intent  to 
avoid  such  payment,  is  punishable  by  fine  not  exceeding  twenty 
dollars. 

Engineer  of  locomotive  engine  omitting  to  ring  bell  when  cross- 
ing  highway. 

390.  Every  person  in  charge  of  a  locomotive  engine  who, 
before  crossing  any  traveled  public  way,  omits  to  cause  a  bell 
to  ring  or  steam-whistle  to  sound  at  the  distance  of  at  least 
eighty  rods  from  the  crossing,  and  up  to  it,  is  guilty  of  a  mis- 
demeanor. 

Intoxication   of  engineers,  conductors,  or  drivers  of  locomotives 
or  cars. 

391.  Every  person  who  is  intoxicated  while  in  charge  of  a 
locomotive  engine,  or  while  acting  as  conductor  or  driver  upon 
any  railroad  train  or  car,  whether  propelled  by  steam  or  drawn 
by  horses,  or  while  acting  as  train  dispatcher  or  as  telegraph 
operator,  receiving  or  transmitting  dispatches  in  relation  to  the 
movement  of  trains,  is  guilty  of  a  misdemeanor. 

Placing  passenger  cars  in  front  of  freight  cars. 

392.  Every  person  who,  in  making  up  or  running  railroad 
trains,  places  or  runs,  or  causes  to  be  placed  or  run,  any  freight 
car  in  the  rear  of  passenger  cars,  is  guilty  of  a  misdemeanor, 
and  if  loss  of  life  or  limb  results  from  such  placing  or  running, 
is  guilty  of  felony.  The  term  "freight  car,  as  used  in  this  sec- 
tion, does  not  include  a  baggage,  express,  or  mail  car. 

Violation  of  duty  of  employees  of  railroad  companies. 

393.  Every  engineer,  conductor,  brakeman,  switch-tender,  or 
other  officer,  agent,  or  servant  of  any  railroad  company,  who  is 
guilty  of  any  wilful  violation  or  omission  of  his  duty  as  such 
officer,  agent,  or  servant,  whereby  human  life  or  safety  is 
endangered,  the  punishment  of  which  is  not  otherwise  prescribed, 
is  guilty  of  a  misdemeanor. 

Exposing  person  infected  with  any  contagious  disease  in  a 
public  place. 
394.  Every  person  who  wilfully  exposes  himself  or  another 
afflicted  with  any  contagious  or  infectious  disease,  ..i  any  public 
place  or  thoroughfare,  except  in  his  necessary  removal  in  a 
manner  the  least  dangerous  to  the  public  health,  is  guilty  of  a 
misdemeanor. 


561  CRIMES  AGAIN&T  PUBLIC  HEALTH.  395-402 

Frauds  practiced  to  affect  the  market  price. 

395.  Every  person  who  wilfully  makes  or  publishes  any  false 
statement,  spreads  any  false  rumor,  or  employs  any  other  false 
or  fraudulent  means  or  device,  with  intent  to  affect  the  market 
price  of  any  kind  of  property,  is  guilty  of  a  misdemeanor. 

Racing  upon   highways. 

396.  Every  person  driving  any  conveyance  drawn  by  horses, 
upon  any  public  road  or  way,  who  causes  or  suffers  his  horses  to 
run,  with  intent  to  pass  another  conveyance,  or  to  prevent  such 
other  from  passing  his  own,  is  guilty  of  a  misdemeanor. 

Selling  liquor  to  Indian  or  common  drunkard. 

397.  Every  person  who  sells  or  furnishes,  or  causes  to  be  sold 
or  furnished,  any  intoxicating  liquors  to  any  habitual  or  com- 
mon drunkard,  is  guilty  of  a  misdemeanor;  or  who  sells  or 
furnishes,  or  causes  to  be  sold  or  furnished,  intoxicating  liquors 
to  any  Indian,  is  punishable  by  imprisonment  in  the  state  prison, 
or  in  a  county  jail,  not  exceeding  two  years,  or  by  a  fine  not 
exceeding  one  thousand  dollars,  or  both.  [Amendment  approved 
February  25,  1897;  Stats.  1897,  p.  29.] 

105  Cal.  345;  113  Cal.  174;  113  Cal.  178. 

Selling  firearms  and  ammunition  to  Indians. 

398.  Every  person  who  sells  or  furnishes-  to  any  Indian  any 
fire-arm,  or  ammunition  therefor,  is  guilty  of  a  misdemeanor. 

Death  from  mischievous  animals. 

399.  If  the  owner  of  a  mischievous  animal,  knowing  its  pro- 
pensities, wilfully  suffers  it  to  go  at  large,  or  keeps  It  without 
ordinary  care,  and  such  animal,  while  so  at  large,  or  while  not 
kept  with  ordinary  care,  kills  any  human  being  who  has  taken 
all  the  precautions  which  the  circumstances  permitted,  or  which 
a  reasonable  person  would  ordinarily  take  in  the  same  situation, 
is  guilty  of  a  felony. 

Exhibiting  deformities  of  person. 

400.  Every  person  exhibiting  the  deformities  of  another,  or 
his  own  deformities,  for  hire,  is  guilty  of  a  misdemeanor;  and 
every  person  who  shall,  by  any  artificial  means,  give  to  any  per- 
son the  appearance  of  a  deformity,  and  shall  exhibit  such  per- 
son for  hire,  shall  be  guilty  of  a  misdemeanor.  [New  section 
approved  February  4,  1874;  Amendments  1873-4,  p.  462.  In  effect 
immediately.] 

Aiding  or  encouraging  suicide  a  felony. 

400.  Every  person  who  deliberately  aids  or  advises,  or 
encourages  another  to  commit  suicide,  is  guilty  of  a  felony. 
[New  section  approved  March  30,  1874;  Amendments  1873-4,  p. 
433.     In  effect  July  1,  1874.] 

Using  or  exposing  animals  with  glanders. 

402.  Any  person  who  shall  knowinglv  sell,  or  iffer  for  sale, 
or  use,  or  expose,  or  who  shall  cause  or  procure  to  be  sold  or 
offered  for  sale,  or  .used,  or  expose,  any  horse,  mule,  or  other 
animal  having  the  disease  known  as  glanders  or  farcy,  or  who 
shall  bring,  or  cause  to  be  brought,  or  aid  in  bringing  into  this 
state  any  sheep,  hog,  horse,  or  cattle,  or  any  domestic  animal, 
knowing  the  same  to  be  affected  with  any  contagious  or  infec- 
tious disease,  shall  be  guilty  of  a  misdemeanor.  [Amendment 
approved  March  10,  1891;   Stats.  1891,  p.  26.] 

CRIMES  --36 


402f  406  PENAL  CODE.  562 

Animal  having  glanders  to  be  killed. 

40214.  Every  animal  having  glanders  or  farcy  shall  at  once 
be  deprived  of  life  by  the  owner  or  person  having  charge 
thereof,  upon  discovery  or  knowledge  of  its  condition;  and  any 
such  owner  or  person  omitting  or  refusing  to  comply  with  the 
provisions  of  this  section  shall  be  guilty  of  a  misdemeanor, 
i Amendment  approved  March  10,  1891;  Stats.  1891,  p.  26.] 

Adulterating  candy. 

4021/4.  Every  person  who  adulterates  candy  by  using  in  its 
manufacture  terra  alba  or  any  other  deleterious  substances,  or 
who  sells  or  keeps  for  sale  any  candy  or  candies  adulterated 
with  terra  alba  or  any  other  deleterious  substance,  knowing  the 
same  to  be  adulterated,  is  guilty  of  a  misdemeanor.  [Amend- 
ment approved  March  10,  1891;    Stats.  1891,  p.  27.] 


TITLE  XI. 

OF  CRIMES  AGAINST  THE  PUBLIC  PEACE. 

Sec.    403.  Disturbance     of    public    meetings,    other    than     religious    or 
political. 

404.  "Riot"  defined. 

40.5.  Riot,  punishment  of. 

406.  "Rout"  defined. 

407.  "Unlawful  assembly"  defined. 

408.  Punishment  of  rout  and  unlawful  assembly. 

409.  Remaining   present  at   place   of   riot,    etc.,    after   warning   to 

disperse. 

410.  Magistrates  neglecting  or  refusing  to  disperse  rioters. 

411.  Consequence    of    resisting    process    after    a    county    has    been 

declared   in  a  state  of  insurrection. 

412.  Prize  fights. 

413.  Persons  present  at  prize  fights. 

414.  Leaving  the  state  to  engage  In  prize  fights. 

415.  Disturbing  the  peace 

416.  Refusing  to  disperse  upon  lawful  command. 

417.  Exhibiting  deadly  weapon  In  rude,  etc.,  manner,  or  using  the 

same  unlawfully. 

418.  Forcible  entry  and  detainer. 

419.  Returning  to  take  possession  of  lands  after  being  removed  by 

legal  proceedings. 

Disturbance  of  public  meetings,  other  than  religious  or  political. 

403.  Every  person  who,  without  authority  of  law,  wilfully 
disturbs  or  breaks  up  any  assembly  or  meeting,  not  unlawful  in 
its  character,  other  than  such  as  is  mentioned  in  sections  59  and 
302,  is  guilty  of  a  misdemeanor. 

"Riot"  defined. 

404.  Any  use  of  force  or  violence,  disturbing  the  public  peace, 
or  any  threat  to  use  such  force  or  violence,  if  accompanied  by 
immediate  power  of  execution,  by  two  or  more  persons  acting 
together,  and  without  authority  of  law,  is  a  riot. 

67    Cal.    418. 

Riot,  punishment  of. 

405.  Every  person  who  participates  in  any  riot  is  punish- 
able by  imprisonment  in  the  county  jail  not  exceeding  two 
years,  or  by  fine  not  exceeding  two  thousand  dollars,  or  both. 

"Rout"  defined. 

406.  Whenever  two  or  more  persons,  assembled  and  acting 
together,  make  any  attempt  or  advance  toward  the  commission 


563  CRIMES    AGAINST   PUBLIC  PEACE.  407-412 

of  an  act   which  would   be  a   riot  if  actually  committed,  sucli 
assembly  is  a  rout. 

"Unlawful   assembly"  defined. 

407.  Whenever  two  or  more  persons  assemble  together  to  do 
an  unlawful  act,  and  separate  without  doing  or  advancing  toward 
it,  or  do  a  lawful  act  in  a  violent,  boisterous,  or  tumultuous  man- 
ner, such  assembly  is  an  unlawful  assembly. 

Punishment  of  rout  and  unlawful  asssembly. 

408.  Every  person  who  participates  in  any  rout  or  unlawful 
assembly  is  guilty  of  a  misdemeanor. 

Remaining   present   at   place   of   riot,  etc.,  after  warning  to  dis- 
perse. 

409.  Every  person  remaining  present  at  the  place  of  any  riot, 
rout,  or  unlawful  assembly,  after  the  same  has  been  lawfully 
warned  to  disperse,  except  public  officers  and  persons  assisting 
them  in  attempting  to  disperse  the  same,  is  guilty  of  a  misde- 
meanor. S 

Magistrates  neglecting  or  refusing  to  disperse  rioters. 

410.  If  a  magistrate  or  officer,  having  notice  of  an  unlawful 
or  riotous  assembly,  mentioned  in  this  chapter,  neglects  to  pro- 
ceed to  the  place  of  assembly,  or  as  near  thereto  as  he  can  with 
safety,  and  to  exercise  the  authority  with  which  he  is  invested 
for  suppressing  the  same  and  arresting  the  offenders,  he  is  guilty 
of  a  misdemeanor. 

Consequence   of   resisting    process   after   a   county   has   been   de- 
clared  in  a  state  of  insurrection. 

411.  A  person  who,  after  the  publication  of  the  proclamation 
authorized  by  section  732,  resists  or  aids  in  resisting  the 
execution  of  process  in  any  county  declared  to  be  in  a 
state  of  insurrection.  or  who  aids  or  attempts  the 
rescue  or  escape  of  another  from  lawful  custody  or  confinement, 
or  who  resists  or  aids  in  resisting  any  force  ordered  out  by  the 
governor  to  quell  or  suppress  an  insurrection,  is  punishable  by 
imprisonment  in  the  state  prison  not  less  than  two  years. 

Prize  fights. 

412.  A  person  who,  within  this  state,  engages  in,  instigates, 
aids,  encourages,  or  does  any  act  to  further  a  contention  or 
fight,  without  weapons,  between  two  or  more  persons,  or  a  fighC 
commonly  called  a  ring  or  prize  fight,  either  within  or  without 
the  state,  or  who  engages  in  a  public  or  private  sparring  exhib- 
ition, with  or  without  gloves,  within  the  state,  or  who  sends  or 
publishes  a  challenge  or  acceptance  of  a  challenge  for  such  a 
contention,  exhibition,  or  fight,  or  carries  or  delivers  such  a 
challenge  or  acceptance,  or  trains  or  assists  any  person  in  train- 
ing or  preparing  for  such  a  contention,  exhibition  or  fight, 
shall  be  guilty  of  a  felony,  and  upon  conviction  shall  be  fined 
not  less  than  one  thousand  dollars  nor  more  than  five  thousand 
dollars,  and  be  imprisoned  in  the  state  prison  not  less  than  one 
year  nor  more  than  three  years;  provided,  however,  that  spar- 
ring exhibitions  not  to  exceed  a  limited  number  of  rounds  with 
gloves  of  not  less  than  five  ounces  each  in  weight  may  be  held 
by  a  domestic  incorporated  athletic  club  upon  the  prepayment 
by  such  club  of  an  annual  license  to  be  fixed  by  the  supervisors 
of  each  county;   provided    further,  that  such  club  shall  have  a 


413-418  PENAL  CODE,  564 

physician  in  attendance  to  examine  the  boxers  prior  to  each 
exhibition  and  determine  whether  or  not  they  are  in  perfect 
physical  condition.     [Stats.  1899,  p.  153.] 

Persons  present  at  prize  fights. 

413.  Every  person  wilfully  present  as  a  spectator  at  any  flght 
or  contention  mentioned  in  the  preceding  section,  is  guilty  of  a 
misdemeanor. 

Leaving  the  state  to  engage  in  prize  fights. 

414.  Every  person  who  leaves  this  state  with  intent  to  evade 
any  of  the  provisions  of  the  last  two  sections,  and  to  commit 
any  act  out  of  this  state  such  as  is  prohibited  by  them,  and  who 
does  any  act  which  would  be  punishable  under  these  provisions 
if  committed  within  this  state,  is  punishable  in  the  same  manner 
as  he  would  have  been  in  case  such  act  had  been  committed 
within  this  state. 

Disturbing  the  peace. 

415.  Every  person  who  maliciously  and  wilfully  disturbs  the 
peace  or  quiet  of  any  neighborhood  or  person,  by  loud  or  unusual 
noise,  or  by  tumultuous  or  offensive  conduct,  or  threatening,  tra- 
ducing, quarreling,  challenging  to  fight,  or  fighting,  or  who,  on  the 
public  streets  of  any  unincorporated  town,  or  upon,  the  public 
highways  in  such  unincorporated  town,  run  any  horse  race,  either 
for  a  wager  or  for  amusement,  or  fire  any  gun  or  pistol  in 
such  unincorporated  town,  or  use  any  vulgar,  profane,  or  inde- 
cent language  within  the  presence  or  hearing  of  women  or  chil- 
dren, in  a  loud  and  boisterous  manner,  is  guilty  of  a  misde- 
meanor,, and  upon  conviction  by  any  court  of  competent  juris- 
diction shall  be  punished  by  fine  not  exceeding  two  hundred 
dollars,  or  by  imprisonment  in  the  county  jail  for  not  more  than 
ninety  days,  or  by  both  fine  and  imprisonment,  or  either,  at  the 
discretion  of  the  court.  [Amendment  approved  March  20,  1878; 
Amendments  1877-8,  p.  117.    In  effect  March  20,  1878.] 

62    Cal.    509. 

Refusing  to  disperse  upon   lawful  command. 

416.  If  two  or  more  persons  assemble  for  the  purnose  of  dis- 
turbing the  public  peace,  or  committing  any  unlawful  act,  and 
do  not  disperse  on  being  desired  or  commanded  so  to  do  by  a 
public  officer,  the  persons  so  offending  are  severally  guilty  of  a 
misdemeanor. 

Exhibiting    deadly   weapon    in    rude,   etc.,   manner,   or   using    the 
same  unlawfully. 

417.  Every  person  who,  not  in  necessary  self-defense,  in  the 
presence  of  two  or  more  persons,  draws  or  exhibits  any  deadly 
weapon  in  a  rude,  angry,  and  threatening  manner,  or  who,  in 
any  manner,  unlawfully  uses  the  same,  in  any  fight  or  quarrel, 
is  guilty  of  a  misdemeanor. 

Forcible  entry  and  detainer. 

418.  Every  person  using  or  procuring,  encouj-aging  or  assist- 
ing another  to  use,  any  force  or  violence  in  entering  upon  or 
detaining  any  lands  or  other  possessions  of  another,  except  In 
the  cases  and  in  the  manner  allowed  by  law,  is  guilty  of  a  mis- 
demeanor. 

60   Cal.    574. 


565  CRIMES  AGAINST  REVENUE  AND  PROPERTY.       419-424 

Returning  to  take  possession  of  lands  after  being  removed  by 
legal  proceedings. 
419.  Every  person  who  has  been  removed  from  any  lands  by 
process  of  law,  or  who  has  removed  from  any  lands  pursuant  to 
the  lawful  adjudication  or  direction  of  any  court,  tribunal,  or 
officer,  and  who  afterwards  unlawfully  returns  to  settle,  reside 
upon,  or  take  possession  of  such  lands,  is  guilty  of  a  misde- 
meanor. 

CHAPTER  XU. 

OF  CRIMES  AGAINST  THE  REVENUE,  AND  PROPERTY  OF 

THIS  STATE. 

Sec.    424.  Embezzlement  and  falsification  of  accounts  by  public  officers. 

425.  Officers   neglecting    to    pay   over   public    moneys. 

426.  "Public  moneys,"   as  used  in  the  preceding  section,   defined. 

427.  Failure   to   pay    OA-er    fines    and    forfeitures   received,    a    mis- 

demeanor. 

428.  Obstructing  officer   in  collecting  revenue. 

429.  Refusing   to    give   assessor    list   of   property,    or   giving    false 

name. 

430.  Making    false    statements,    not    under    oath,    In    reference   to 

taxes. 

431.  Delivering   receipts    for   poll-taxes,    other   than   prescribed    by 

law,  or  collecting  poll-taxes,  etc.,  without  giving  the  receipts 
prescril)ed  by  law. 

432.  Having    blank    receipts    for    licenses,    etc.,    other   than    those 

prescribed  by  law. 

434.  Refusing  to   give   name   of   persons  in   employment,   etc. 

435.  Carrying   on    business    without    license. 

436.  Unlawfully  acting  as  auctioneer. 

439.  Effecting    insurance    on    account    of    foreign    companies    that 

have  not  complied  with  the  laws  of  this  state. 

440.  Officer   charged   with    collection,    etc.,   of   revenue,    refusing  to 

permit  inspection  of  his  books. 

441.  Board     of    examiners,     controller,     and    treasurer    neglecting 

certain  duties. 

442.  Having  state  arms,  etc. 

443.  Selling  state  arms,  etc. 

Embezzlement  and  falsification  of  accounts  by  public  officers. 
'   424.     Each  officer  of  this  state,  or  of  any  county,  city,  town, 
or  district  of  this  state,  and  every  other  person  charged  with 
the    receipt,    safe-keeping,    transfer,    or    disbursement    of  'public 
moneys,  who  either: 

1.  Without  authority  of  law,  appropriates  the  same,  or  any 
portion  thereof,  to  his  own  use,  or  to  the  use  of  another;   or, 

2.  Loans  the  same,  or  any  portion  thereof,  or  having  the 
possession  or  control  of  any  public  money,  makes  a  profit  out 
of,  or  uses  the  same  for  any  purpose  not  authorized  by  law;  or. 

3.  Fails  to  keep  the  same  in  his  possession  until  disbursed 
or  paid  out  bv  authority  of  law;   or, 

4.  Unlawfully  deposits  the  same,  or  any  portion  thereof,  in 
any  bank,  or  with  any  banker  or  other  person;  or, 

5.  Changes  or  converts  any  portion  thereof  from  coin  into 
currencv,  or  from  currency  into  coin,  or  other  currency,  without 
authoritv  of  law;-  or. 

6.  Knowingly  keeps  any  false  account,  or  makes  any  false 
entry  or  erasure  in  any  account  of  or  relating  to  the  same;  or. 

7.  Fraudulently  alters,  falsifies,  conceals,  destroys,  or  oblit- 
erates any  such  account;    or, 

8.  Wilfully  refuses  or  omits  to  pay  over,  on  demand,  any 
public  moneys  in  his  hands,  upon  the  presentation  of  a  draft, 


425-430  PENAL  coDfi.  566 

order,  or  warrant  drawn  upon  such  moneys  by  competent  author- 
ity; or, 

9.  Wilfully  omits  to  transfer  the  same  when  such  transfer  is 
required  by  law;  or, 

10.  Wilfully  omits  or  refuses  to  pay  over  to  any  officer  or  per- 
son authorized  by  law  to  receive  the  same,  any  money  received 
by  him  under  any  duty  imposed  by  law  so  to  pay  over  the 
same; 

,  Is  punishable  by  imprisonment  in  the  state  prison  for  not 
less  than  one  nor  more  than  ten  years,  and  is  disqualified  from 
holding  any  office  in  this  state.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  p.  39.    In  effect  April  16,  1880.] 

54  Cal.  63;  70  Cal.  524;  87  Cal.  608;  91  Cal.  511; 
100  Cal.  23;  103  Cal.  489;  113  Cal.  211;  117  Cal. 
243;  120  Cal.  5;  124  Cal.  454. 

Off.cers  neglecting  to  pay  over  public  moneys. 

425.  Every  officer  charged  witn  the  receipt,  safe-keeping,  or 
disbursement  of  public  moneys,  who  neglects  or  fails  to  keep 
and  pay  over  the  same  in  the  manner  prescribed  by  law,  is 
guilty  of  felony. 

52    Cal.    200;    91    Cal.    511. 

'•Public  moneys,"  as  used    in  the   preceding  section,  defined. 

426.  The  phrase  "public  moneys,"  as  used  in  the  two  preced- 
ing sections,  includes  all  bonds  and  evidence  of  indebtedness, 
and  all  moneys  belonging  to  the  state,  or  any  city,  county,  town, 
or  district  therein,  and  all  moneys,  bonds,  and  evidences  of 
indebtedness  received  or  held  by  state,  county,  district,  city,  or 
town  officers  in  their  official  capacity. 

87    Cal.    608;    117    Cal.    244. 

■Failure    to    pay    over    fines    and    forfeitures    received,    a    mis- 
demeanor. 

427.  If  any  clerk,  justice  of  the  peace,  sheriff,  or  constable, 
who  receives  any  fine  or  forfeiture,  refuses  or  neglects  to  pay 
over  the  same  according  to  law  and  within  thirty  uays  after  the 
receipt  thereof,  he  is  guilty  of  a  misdemeanor. 

65    Cal.    478. 

Obstructing  officer  in  collecting  revenue. 

428.  Every  person  who  wilfully  obstructs  or  hinders  any  pub-« 
lie  officer  from  collecting  any  revenue,  taxes,  or  other  sums  of 
money  in  which  the  people  of  this  state  are  interested,  and 
•which  such  officer  is  by  law  empowered  to  collect,  is  guilty  ot 
a  misdemeanor. 

91  Cal.    511. 

Refusing  to  give  assessor  list  of  property,  or  giving  false  name. 

429.  Every  person  who  unlawfully  refuses,  upon  demand,  to 
give  to  any  county  assessor  a  list  of  his  property  subject  to  tax- 
ation, or  to  swear  to  such  list,  or  who  gives  a  false  name  or 
fraudulently  refuses  to  give  his  true  name  to  any  assessor,  when 
demanded  by  such  assessor  in  the  discharge  of  his  official  duties, 
is  guilty  of  a  misdemeanor. 

Making  false  statements,  not  under  oath,  in  reference  to  taxes. 

430.  Every  person  who,  in  making  any  statement,  not  upon 
oath,  oral    or  written,  which  is  required  or  authorized  by  law 
to  be  made,  as  the  basis  of  imposing  any  tax  or  assessment,  or  • 
of  an  application  to  reduce  any  tax  or  assessment,  wilfully  states 
anything  which  he  knows  to  be  false,  is  guilty  of  a  misdemeanor. 


567  CRIMES  AGAINST  REVENUE  AND  PROPERTY.       431-44^ 

Delivering  receipts  for  poll  taxes,  other  than  prescribed  by  law, 
or  collecting  poll  taxes,  etc.,  without  giving  the  receipts 
prescribed  by  law. 

431.  Every  person  who  uses  or  gives  any  receipt,  except  that 
prescribed  by  law,  as  evidence  of  the  payment  of  any  poll  tax, 
road  tax,  or  license  of  any  kind,  or  who  receives  payment  of  such 
tax  or  license  without  delivering  the  receipt  prescribed  by  law, 
or  who  inserts  the  name  of  more  than  one  person  therein,  is 
guilty  of  a  misdemeanor. 

Having  blank  receipts  for  licenses,  etc.,  other  than  those 
prescribed  by  law, 

432.  Every  person  who  has  in  his  possession,  with  intent  to 
circulate  or  sell,  any  blank  licenses  or  poll-tax  receipts  other 
than  those  furnished  by  the  controller  of  state  or  county  auditor, 
is  guilty  of  felony. 

433.  [Was  repealed  by  an  act  entitled  "An  Act  to  Amend  and 
in  Relation  to  the  Political,  Civil,  and  Penal  Codes,  and  the 
Code  of  Civil  Procedure,"  approved  April  1,  1872,  now  on  file 
in  the  office  of  the  secretary  of  state.] 

Refusing  to  give  name  of  persons  in  employment,  etc. 

434.  Every  person  who,  when  requested  by  the  collector  of 
taxes  or  licenses,  refuses  to  give  to  such  collector  the  name  and 
residence  of  each  man  in  his  employment,  or  to  give  such  col- 
lector access  to  the  building  or  place  where  siacn  men  are 
employed,  is  guilty  of  a  misdemeanor. 

Carrying   on   business  without   license. 

435.  Every  person  who  commences  or  carries  on  any  busi- 
ness, trade,  profession,  or  calling,  for  the  transaction  or  carry- 
ing on  of  which  a  license  is  required  by  any  law  of  this  state, 
without  taking  out  or  procuring  the  license  prescribed  by  such 
law,  is  guilty  of  a  misdemeanor. 

69   Cal.    60S:    7i    Cal.    468;    85    Cal.    210;    106   Cal. 
404;    114    Cal.    2S2. 

Unlawfully  acting  as  auctioneer. 

436.  Every  person  who  acts  as  an  auctioneer  in  violation  of 
the  laws  of  this  state  relating  to  auctions  and  auctioneers,  is 
guilty  of  a  misdemeanor. 

437.  [Repealed.     See  section  433.] 

438.  [Repealed.     See  section  433.] 

Effecting  insurance  on  account  of  foreign  companies  that  have 
not  complied  with  the  laws  of  this  state. 

439.  Every  person  who  in  this  state  procures,  or  agrees  to 
procure,  any  insurance  for  a  resident  of  this  state,  from  any 
insurance  company  not  incorporated  under  the  laws  of  this  state, 
unless  such  company  or  its  agent  has  filed  the  bond,  required  by 
the  laws  of  this  state  relating  to  insurance,  is  guilty  of  a  misde- 
meanor. 

Officer  charged  with  collection,  etc.,  of  revenue,  refusing  to 
permit    inspection    of   his   books. 

440.  Every  officer  charged  with  the  collection,  receipt,  or  dis- 
bursement  of   any  portion   of   the  revenue   of  this   state,   who. 


441-443  PENAL  coDB.  568 

upon  demand,  fails  or  refuses  to  permit  the  controller  or  attor- 
ney-general to  inspect  his  books,  papers,  receipts,  and  records 
pertaining  to  his  office,  is  guilty  of  a  misdemeanor. 

Board  of  examiners,  controller,  and  treasurer  neglecting  certain 
duties. 

441.  Every  member  of  the  board  of  examiners  and  every 
controller'  or  state  treasurer  who  violates  any  of  the  provisions 
of  tht-  laws  of  this  state  relating  to  the  board  of  examiners,  or 
prescribing  its  powers  and  duties,  is  guilty  of  a  felony. 

Having  state,  arms,  etc. 

442.  Every  person  who  unlawfully  retains  in  his  possession 
any  arms,  equipments,  clothing,  or  military  stores  belonging  to 
the  state,  or  the  property  of  any  company  of  the  state  militia,  Is 
guilty  of  a  misdemeanor. 

Selling  state  arms,  etc. 

443.  Every  member  of  the  state  militia  who  unlawfully  dis- 
poses of  any  arms,  equipments,  clothing,  or  military  stores,  the 
property  of  this  state,  or  of  any  company  of  the  state  militia,  Is 
guilty  of  a  misdemeanor. 

TITLE  XIII. 
OF  CRIMES  AGAINST  PROPERTY. 

Chapter  I.     Arson,  447-55. 

II.     Burglary  and  Housebreaking,  459-63. 

III.  Having  possession   of  Burglarious   Instruments  and 

Deadly  Weapons,  466-7. 

IV.  Forgery  and   Counterfeiting,  470-82. 
V.     Larceny,   484-502. 

VI.     Embezzlement,  503-14. 
VII.     Extortion,  518-25. 
VIII.     False  Personation  and  Cheats,  528-36. 
•IX.     Fraudulently   fitting    out    and    Destroying   Vessels, 
539-541. 
X.     Fraudulently      Keeping      possession      of     Wrecked 
Property,  544-5. 
XI.     Fraudulent  destruction  of  Property  Insured,  548-9. 
XII.     False  Weights  and  Measures,  552-5. 

XIII.  Fraudulent  Insolvencies  by  Corporations,  and  other 

Frauds  in  their  Management,  557-72. 

XIV.  Fraudulent   issue    of   Documents    of   Title   to    Mer- 

chandise, 577-83. 
XV.     Malicious   Injuries   to  Railroad    Bridges,   Highways, 
Bridges,  and  Telegraphs,   587-92. 

CHAPTER  I. 
ARSON. 

Bee.    447.  Arson  defined.     * 

44S.  "Building"    defined. 

440.  "Inhabited  building"  defined. 

450.  "Night-time"    defined 

4.51.  "Burning"  defined. 

452.  Ownership  of  the  building. 

45.S.  Degrees  of  arson. 

4.54.  Arson  of  the  first  degree.    Arson  of  the  second  degree. 

45.5.  Punishment   of  arson. 


569  CRIMES  AGAINST  PROPERTY.  447-455 

Arson  defined. 

447.  Arson  is  the  wilful  and  malicious  burning  of  a  building, 
with  Intent  to  destroy  it. 

51  Cal.  320;  71  Cal.  49;  81  Cal.  617;  103  Cal.  445; 
113  Cal.    406;   127   Cal.   a40. 

"Building"  defined. 

448.  Any  house,  edifice,  structure,  vessel,  or  other  erection, 
capable  of  affording  shelter  for  human  beings,  or  appurtenant 
to  or  connected  with  an  erection  so  adapted,  is  a  "building," 
within  the  meaning  of  this  chapter. 

51   Cal.    320;    71   Cal.    49;    81    Cal.    617;    103   Cal. 
445. 

"Inhabited    building"    defined. 

449.  Any  building  which  has  usually  been  occupied  by  any 
person  lodging  therein  at  night  is  an  "inhabited  building,"  within 
the  meaning  of  this  chapter. 

71    CaJ.    49;    81    Cal.    617. 

"Niglit-time"  defined. 

450.  The  phrase  "night-time,"  as  used  in  this  chapter,  means 
the  period  between  sunset  and  sunrise. 

"Burning"  defined. 

451.  To  constitute  a  burning,  within  the  meaning  of  this 
chapter,  it  is  not  necessary  that  the  building  set  on  fire  should 
have  been  destroyed.  It  is  sufficient  that  fire  is  applied  so  as 
to  take  effect  upon  any  part  of  the  substance  of  tne  building. 

103     Cal.     445. 

Ownership   of  the   building. 

452.  To  constitute  arson  it  is  not  necessary  that  a  person 
other  than  the  accused  should  have  had  ownership  in  the  build- 
ing set  on  fire.  It  is  sufficient  that  at  the  time  of  the  burning 
another  person  was  rightfully  in  possession  of,  or  was  actually 
occupying  such  building,  or  any  part  thereof. 

71   Cal.    49;    SI   Cal."  617;   113  Cal.    406. 
Degree.c;   of  arson. 

453.  Arson  is  divided  into,  two  degrees. 

.-,3  Cal.    627. 

Arson  of  the  first  degree.     Arson  of  the  second  degree. 

454.  Maliciously  burning  in  the  night-time  an  inhabited  build- 
ing in  which  there  is  at  the  time  some  human  being,  is  arson 
in  the  first  degree.  All  other  kinds  of  arson  are  of  the  second 
degree. 

ti;    Cal.    627. 

Penalty  for  crime  of  arson. 

455.  Arson  is  punishable  by  imprisonment  in  the  state  prison, 
as  follows: 

1.  Arson  in  the  first  degree,  for  not  less  than  two  years; 

2.  Arson  in  the  second  degree,  for  not  less  than  one  nor  more 
than  twenty-five  years.     [Stats.   1901,  p.  664.] 


459-466  PENAL  CODE.  670 

CHAPTER  II. 
BURGLARY. 

Sec.    459.  "Burglary"   defined. 

460.  Degrees    of  burglary- 

461.  I'unishuient  of    l>urglary 
463.  "Night-time"    defined. 

"Burglary"  defined. 

459.  Every  person  who  enters  any  house,  room,  apartment, 
tenement,  shop,  warehouse,  store,  mill,  barn,  stable,  outhouse, 
or  other  building,  tent,  vessel,  or  railroad  car,  with  intent  to 
commit  grand  or  petit  larceny,  or  any  felony,  is  guilty  of  bur- 
glary. [Amendment  approved  February  9,  1876;  Amendments 
1875-6,  p.  111.     In  effect  May  1,  1876.] 

52  Cal.  454:  55  Cal.  525;  56  Cal.  407;  58  Cal.  106; 
59  Cal.  3S3;  61  Cal.  366;  65  Cal.  226;  67  Cal.  104; 
86  Cal.  240;  93  Cal.  113;  94  Cal.  482;  94  Cal. 
597;  121  Cal.  347;  130  Cal.  602. 

Degrees  of  burglary. 

460.  Every  burglary  committed  in  the  night-time  Is  burglary 
of  the  first  degree,  and  every  burglary  committed  in  the  day- 
time is  burglary  of  the  second  degree.  [Amendment  approved 
February  9,  1876;  Amendments  1875-6,  p.  111.  In  effect  May  1, 
1876.] 

52   Cal.    454;    59    Cal.    383;    73    Cal.    581;    106    Cal.  842. 

Punishment  of  burglary. 

461.  Burglary  of  the  first  degree  is  punishable  by  imprison- 
ment in  the  state  prison  for  not  less  than  one  nor  more  than 
fifteen  years.  Burglary  of  the  second  degree  is  punishable  by 
imprisonment  in  the  state  prison  for  not  more  than  five  years. 
[Amendment  approved  February  9,  1876;  Amendments  1875-6,  p. 
111.     In  effect  May  1,  1876.] 

52  Cal.   454;   88   Cal.    120;   88  Cal.   173. 

"Night  time"  defined. 

463.  The  phrase  "night-time,"  as  used  in  this  chapter,  means 
the  period  between  sunset  and  sunrise. 

CHAPTER  III. 

HAVING   POSSESSION     OF     BURGLARIOUS    INSTRUMENTS 

AND  DEADLY  WEAPONS. 

Sec.    466.    Po><session    of   burglariou.s    instrnnieuts. 
467.     Having  possession  of  deadly   W(>ai)ons. 

Possession  of  burglarious  instruments. 

466.  Every-  person  having  upon  him  or  in  his  possession  a 
picklock,  crow,  keybit,  or  other  instrument  or  tool  with  intent 
feloniously  to  break  or  enter  into  any  builduig,  or  who  shall 
knowingly  make  or  alter,  or  shall  attempt  to  make  or  alter,  any 
key  or  other  instrument  above  named  so  that  the  same  will  fit 
or  open  the  lock  of  a  building,  without  being  requested  so 
to  do  by  some  person  having  the  right  to  open  the 
same,  or  who  shall  make,  alter,  or  repair  any  instru- 
ment or  thing,  knowing  or  having  reason  to  believe  that  It  is 
intended  to  be  used  in  committing  a  misdeiheanor  or  felony,  is 
guilty  of  misdemeanor.  Any  of  the  structures  mentioned  in  sec- 
tion four  hundred  and  fifty-nine  of  this  code    shall  be  deemed 


571  BURGLARY,  FORGERY,  ETC.  467-470 

to  be  a  building  within  the  meaning  of  this  section.  [Amend- 
ment approved  March  3,  1874;  Amendments  1873-4,  p.  463.  In 
effect  March  3,  1874.] 

Having   possession   of  deadly  weapons. 

467.     Every  person  having  upon  him  any  deadly  weapon  with 
intent  to  assault  another,  is  guilty  of  a  misdemeanor. 


CHAPTER  IV. 
FORGERY  AND  COUNTERFEITING. 

Sec.    470.  Forgery  of  wills,  conveyances,  etc. 

471.  Making  false  entries  in  records  or  returns. 

472.  Forgery  of  public  and  corporate  seals. 

473.  Punishment  of  forgery. 

474.  Forging  telegraphic   messages. 
47.5.  Passing  or  receiving  forged  notes. 

476.  Making,   p,T.ssing,  or  uttering  fictitious  ijills,  etc. 

477.  Counterfeiting  coin,  hnilion,  etc. 

478.  Punisliment  of  counterfeiting. 

479.  Possessing   or   receiving   counterfeit  coin,    Ijullion,    etc. 

480.  Making  or  possessing  counterfeit  dies  or  plates. 

481.  Connterfeiting  railroad  ticket,  etc. 

482.  Restoring  canceled  tickets. 

Forgery  of  wills,  conveyances,   etc. 

470.  Every  person  who,  with  intent  to  defraud  another,  falsely 
makes,  alters,  forges,  or  counterfeits  any  charter,  letters,  patent, 
deed,  lease,  indenture,  writing  obligatory,  will,  testament,  codi- 
cil, annuity,  bond,  covenant,  bank-bill  or  note,  post-note,  check, 
draft,  bill  of  exchange,  contract,  promissory  note,  due-bill  for 
the  payment  of  money  or  property,  receipt  for  money  or  prop- 
erty, passage  ticket,  power  of  attorney,  or  any  certificate  of  any 
share,  right,  or  interest  in  the  stock  of  any  corporation  or  asso- 
ciation, or  any  controller's  warrant  for  the  payment  of  money 
at  the  treasury,  county  order  or  warrant,  or  request  for  the 
payment  of  money,  or  the  delivery  of  goods  or  chattels  of  any 
kind,  or  for  the  delivery  of  any  instrument  of  writing,  or  acquit- 
tance, release,  or  receipt  for  money  or  goods,  or  any  acquit- 
tance, release,  or  discharge  for  any  debt,  account,  suit,  action, 
demand,  or  other  thing,  real  or  personal,  or  any  transfer  or 
assurance  of  money,  certificates  of  shares  of  stock,  goods,  chat- 
tels, or  other  property  whatever,  or  any  letter  of  attorney,  or 
other  power  to  receive  money,  or  to  receive  or  transfer  certifi- 
cates of  shares  of  stock  or  annuities,  or  to  let,  lease,  dispose  of, 
alien,  or  convey  any  goods,  chattels,  lands,  or  tenements,  or 
other  estate,  real  or  personal,  or  any  acceptance  or  indorsement 
of  any  bill  of  exchange,  promissory  note,  draft,  order,  or  assign- 
ment of  any  bond,  writing  obligatory,  or  promissory  note  for 
money  or  other  property,  or  counterfeits  or  forges  the  seal  or 
handwriting  of  another;  or  utters,  publishes,  passes,  or  attempts 
to  pass,  as  true  and  genuine,  any  of  the  above  named  false, 
altered,  forged,  or  counterfeited  matters,  as  above  specified  and 
described,  knowing  the  same  to  be  false,  altered,  forged,  or 
counterfeited,  with  intent  to  prejudice,  damage,  or  defraud  any 
person;  or  who,  with  intent  to  defraud,  alters,  corrupts,  or  falsi- 
fies any  record  of  any  will,  codicil,  conveyance,  or  other  instru- 
ment, the  record  of  which  is  by  law  evidence,  or  any  record  of 


471-475  PRNAL  CODE.  572 

any    judgment  of  a  court  or  the  return  of  any  officer  to  any  process 
of  any  court,  is  guilty  of  forgery. 

65  Cal.  279;  66  Cal.  262;  70  Cal.  63;  77  Cal. 
#65:  84  Cal.  569;  90  Cal.  587;  91  Cal.  473;  92 
Cal.  592;  96  Cal.  174;  100  Cal.  665;  103  Cal.  564; 
105  Cal.  38;  108  Cal.  442;  111  Cal.  280;  113 
Cal.  280;  114  Cal.  353;  117  Cal.  30;  118  Cal.  292; 
119  Cal.  167;  122  CaJ.  495;  123  Cal.  410;  130 
Cal.  462;  133  Cal.  125. 

Making  false  entries   in   records  or  returns. 

471.  Every  person  who,  with  intent  to  defraud  another,  makes, 
forges,  or  alters  any  entry  in  any  book  of  records,  or  any  instru- 
ment purporting  to  be  any  record  or  return  specified  In  the  pre- 
ceding section,  is  guilty  of  forgery. 

96  Cal.    174;    133   Cal.    125. 

Porgery  of  public  and  corporate  seals. 

472.  Every  person  who,  with  intent  to  defraud  another,  forges, 
or  counterfeits  the  seal  of  this  state,  the  seal  of  any  public 
officer  authorized  by  law,  the  seal  of  any  court  of  record,  or  the 
seal  of  any  corporation,  or  any  other  public  seal  authorized  or 
recognized  by  the  laws  of  this  state,  or  of  any  other  state,  gov- 
ernment, or  country,  or  who  falsely  makes,  forges,  or  counter- 
feits any  impression  purporting  to  be  an  impression  of  any  such 
seal,  or  who  has  in  his  possession  any  such  counterfeited  seal 
or  impression  thereof,  knowing  it  to  be  counterfeited,  and  wil- 
fully conceals  the  same,  is  guilty  of  forgery. 

133    Cal.    125. 

Punishment  of  forgery. 

473.  Forgery  is  punishable  by  imprisonment  in  the  state  prison 
for  not  less  than  one  nor  more  than  fourteen  years. 

133    Cal.    125. 

Forging  telegraphic  messages. 

474.  Every  person  who  knowingly  and  wilfully  sends  by  tel- 
egraph to  any  person  a  false  or  forged  message,  purporting  to 
be  from  such  telegraph  office,  or  from  any  other  person,  or  who 
wilfully  delivers,  or  causes  to  be  delivered  to  any  person  any 
such  message  falsely  purporting  to  have  been  received  by  tele- 
graph, or  who  furnishes  or  conspires  to  furnish,  or  causes  to  be 
furnished  to  any  agent,  operator,  or  employee,  to  be  sent  by 
telegraph,  or  to  be  delivered,  any  such  message,  knowing  the 
same  to  be  false  or  forged,  with  the  intent  to  deceive,  injure, 
or  defraud  another,  is  punishable  by  imprisonmeni  in  the  state 
prison  not  exceeding  five  years,  or  in  the  county  jail  not  exceed- 
ing one  year,  or  by  fine  not  exceeding  five  thousand  dollars,  or 
by  both  fine  and  imprisonment. 

Passing  or  receiving  forged  notes. 

475.  Every  person  who  has  in  his  possession,  or  receives  from 
another  person,  any  forged  promissory  note  or  bank-bill,  or  bills, 
for  the  payment  of  money  or  property,  with  the  intention  to 
pass  the  same,  or  to  permit,  cause,  or  procure  the  same  to  be 
uttered  or  passed,  with  the  intention  to  defraud  any  person, 
knowing  the  same  to  be  forged  or  counterfeited,  or  has  or  keeps 
In  his  possession  any  blank  or  unfinished  note  or  banK-bill  made 
in  the  form  or  similitude  of  any  promissory  note  or  bill  for 
payment  of  money  or  property,  made  to  be  issued  by  any  incor- 
porated bank  or  banking  company,  with  intention  to  fill  up  and 
complete  such  blank  and  unfinished  note  or  bill,  or  to  permit,  or 


578  FORGERY  AND  COUNTERFEITING.  476-481 

cause,  or  procure  the  same  to  be  filled  up  and  completed  In, 
order  to  utter  or  pass  the  same,  or  to  permit,  or  cause,  or  pro- 
cure the  same  to  be  uttered  or  passed,  to  defraud  any  person,  is 
punishable  by  imprisonment  in  the  state  prison  for  not  less  than 
one  nor  more  than  fourteen  years. 

Making,  passing,  or  uttering  fictitious  bills,  etc. 

476.  Every  person  who  makes,  passes,  utters,  or  publishes, 
with  intention  to  defraud  any  other  person,  or  who,  with  the  like 
intention,  attempts  to  pass,  utter,  or  publish,  or  who  has  in  his 
possession,  with  like  intent  to  utter,  pass,  or  publish,  any  fic- 
titious bill,  note,  or  check,  purporting  to  be  the  bill,  note,  or 
check,  or  other  instrument  in  writing  for  the  payment  of  money 
or  property  of  some  bank,  corporation,  copartnership,  or  indi- 
vidual, when,  in  fact,  there  is  no  such  bank,  corporation,  copart- 
nership, or  individual  in  existence,  knowing  the  bill,  note,  check, 
or  instrument  in  writing  to  be  fictitious,  is  punishable  by  im- 
prisonment in  the  state  prison  for  not  less  than  one  nor  more 
than  fourteen  years. 

90   Cal.    587:    105   Cal.    38;    109   Cal.    296;    114  Cal. 
351;    119    Cal.    169;    133    Cal.    122. 

Counterfeiting  coin,  bullion,  etc. 

477.  Every  person  who  counterfeits  any  of  the  species  of  gold 
or  silver  coin  current  in  this  state,  or  any  kind  or  species  of 
gold  dust,  gold  or  silver  bullion,  or  bars,  lumps,  pieces,  or  nug- 
gets, or  who  sells,  passes,  or  gives  in  payment  such  counterfeit 
coin,  dust,  bullion,  bars,  lumps,  pieces,  or  nuggets,  or  permits, 
causes,  or  procures  the  same  to  be  sold,  uttered,  or  passed,  with 
intention  to  defraud  any  person,  knowing  the  same  to  be  coun- 
terfeited, is  guilty  of  counterfeiting. 

Punishment  of  counterfeiting. 

478.  Counterfeiting  is  punishable  by  imprisonment  in  the  state 
prison  for  not  less  than  one  nor  more  than  fourteen  years. 
Possessing  or  receiving  counterfeit  coin,  bullion,  etc. 

479.  Every  person  who  has  in  his  possession,  or  receives  for 
any  other  person,  any  counterfeit  gold  or  silver  coin  of  the 
species  current  in  this  state,  or  any  counterfeit  gold  dust,  gold 
or  silver  bullion  or  bars,  lumps,  pieces,  or  nuggets,  with  the 
intention  to  sell,  utter,  put  off,  or  pass  the  same,  or  permits, 
causes,  or  procures  the  same  to  be  sold,  uttered,  or  passed,  with 
intention  to  defraud  any  person,  knowing  the  same  to  be  coun- 
terfeit, is  punishable  by  imprisonment  in  the  state  prison  not 
less  than  one  nor  more  than  fourteen  years. 

Making  or  possessing  counterfeit  dies  or  plates. 

480.  Every  person  who  makes,  or  knowingly  has  in  his  pos- 
session any  die,  plate,  or  any  apparatus,  paper,  metal,  machine, 
or  other  thing  whatever,  made  use  of  in  counterfeiting  coin  cur- 
rent in  this  state,  or  in  counterfeiting  gold  dust,  gold  or  silver 
bars,  bullion,  lumps,  pieces,  or  nuggets,  or  in  counterfeiting 
bank  notes  or  bills,  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one  nor  more  than  fourteen  years;  and  all 
such  dies,  plates,  apparatus,  paper,  metal,  or  machine,  intended 
for  the  purpose  aforesaid,  must  be  destroyed. 

so    Cal.    285. 

Counterfeiting  railroad  ticket,  etc. 

481.  Every  person  who  counterfeits,  forges,  or  alters  any 
ticket,  check,  order,  coupon,  receipt  for  fare    or  pass,  issued  by 


482-484  PENAL  CODE.  674 

any  railroad  company,  or  by  any  lessee  or  manager  thereof, 
designed  to  entitle  the  holder  to  ride  in  the  cars  of  such  com- 
pany, or  who  utters,  publishes,  or  puts  into  circulation  any  such 
counterfeit  or  altered  ticket,  check,  or  order,  coupon,  receipt  for 
fare  or  pass,  with  intent  to  defraud  any  such  railroad  company, 
or  any  lessee  thereof,  or  any  other  person,  is  punishable  by 
imprisonment  in  the  state  prison,  or  in  the  county  jail,  not 
exceeding  one  year,  or  by  fine  not  exceeding  one  thousand  dol- 
lars, or  by  both  such  imprisonment  and  fine.  [New  section 
approved  March  30,  1874;  Amendments  1873-4,  p.  433.  In  effect 
July  1,  1874.] 

Restoring  canceled  tickets. 

482.  Every  person  who,  for  the  purpose  of  restoring  to  Its 
original  appearance  and  nominal  value,  in  whole  or  in  part, 
removes,  conceals,  fills  up,  or  obliterates  the  cuts,  marks,  punch- 
holes,  or  other  evidence  of  cancellation,  from  any  ticket,  check, 
order,  coupon,  receipt  for  fare  or  pass,  issued  by  any  railroad 
company,  or  any  lessee  or  manager  thereof,  canceled  in  whole 
or  in  part,  with  intent  to  dispose  of  by  sale  or  gift,  or  to  circu- 
late the  same,  or  with  intent  to  defraud  the  railroad  company, 
or  lessee  thereof,  or  any  other  person,  or  who,  with  like  intent 
to  defraud,  offers  for  sale,  or  in  payment  of  fare  on  the 
railroad  of  the  company,  such  ticket,  check,  order,  coupon,  or 
pass,  knowing  the  same  to  have  been  so  restored  in 
whole  or  in  part,  is  punishable  by  imprisonment  in  the 
county  jail  not  exceeding  six  months,  or  by  fine  not 
exceeding  one  thousand  dollars,  or  by  both  such  imprisonment 
and  fine.  [New  section  approved  March  30,  1874;  Amendments 
1873-4,  p.  433.    In  effect  July  1,  1874.] 

133   Cal.    126. 

CHAPTER  V. 
LARCENY. 

Sec.    484.  "Larceny"  defined. 

485.  Larceny  of  lost  property. 

486.  Grand  and  petit  larceny. 

487.  Grand    larceny    defined. 

488.  Petit  larceny. 

489.  Punishment  of  grand  larceny. 

490.  Punishment   of    petit   larceny. 

491.  Dogs  property. 

492.  Larceny  of   written   instruments. 

493.  Value  of  passage  tickets. 

494.  Written    instruments   completed   but  not   delivered. 

495.  Severing  and  removing  part  of  the  realty. 

496.  Receiver  of  stolen  property. 

497.  Larceny,    and   receiving   stolen   property   out   of   the    state. 

498.  Stealing  gas. 

499.  Stealing  water. 

499a.  Stealing  electricity   a   misdemeanor. 

500.  Larceny   of   goods   saved   from   fire    In   San    Francisco. 

501.  Purchasing   or   receiving    in    pledge   junlc,    etc. 
502J.  Removal   of  mortgaged   property.  , 

"Larceny"  defined. 

484.  Lareeny  is  the  felonious  stealing,  taking,  carrying,  lead- 
ing, or  driving  away  the  personal  property  of  another. 

f;?  Cal.  59:  56  Cal.  80:  61  Cal.  135;  61  Cal.  528; 
62  Cal.  141;  SO  Cal.  51;  81  Cal.  137;  86  Cal.  239; 
90  Cal.  572;  95  Cal.  228;  110  Cal.  601;  112  Cal. 
339;  118  Cal.  26;  123  Cal.  524. 


575  LARCENY.  486-493 

Larceny   of    lost   property. 

485.  One  who  finds  lost  property  under  circumstances  which 
give  him  knowledge  of  or  means  of  inquiry  as  to  the  true  owner, 
and  who  appropriates  such  property  to  his  own  use,  or  to  the 
use  of  another  person  not  entitled  thereto,  without  first  making 
reasonable  and  just  efforts  to  find  the  owner  and  restore  the 
property  to  him,  is  guilty  of  larceny. 

SI   Cal.    137;    35   Cal     230. 

Grand  and  petit  larceny. 

486.  Larceny  is  divided  into  two  degrees,  the  first  of  which  is 
termed  grand  larceny;   the  second,  petit  larceny. 

66  Cal.    1S5:    67    Cal.    351;    8G   Cal.    240;    112    Cal.  3o9. 

Grand   larceny  defined. 

487.  Grand  larceny  is  larceny  committed  in  either  of  the  fol- 
lowing cases: 

1.  When  the  property  taken  is  of  a  value  exceeding  fifty  dol- 
lars. 

2.  When  the  property  is  taken  from  the  person  of  another. 

3.  When  the  property  taken  is  a  bicycle,  horse,  mare,  gelding, 
cow,  steer,  bull,  calf,  mule,  jack,  or  jenny.     [Stats.  1901,  p.  290.] 

49  Cal.  68;  56  Cal.  80;  59  Cal.  392;  61  Cal.  477; 
62  Cal.  52;  62  Cal.  142;  65  Cal.  17;  66  Cal.  185; 

67  Cal.  351;  80  Cal.  51;  90  Cal.  572;  100  Cal.  439; 
114  Cal.  110:  116  Cal.  584;  120  Cal.  667. 

Petit  larceny. 

488.  Larceny  in  other  cases  is  petit  larceny. 

64  Cal.  404;  67  Cal.  352;  86  Cal.  240;  112  Cal.  S39; 
116    Cal.    584. 

Punishment  of  grand   larceny. 

489.  Grand  larceny  is  punishable  by  imprisonment  in  the 
state  prison  for  not  less  than  one  nor  more  than  ten  years. 

61   Cal.    135;   64   Cal.    252;   65   Cal.    299. 

Punishment  of  petit  larceny. 

490.  Petit  larceny  is  punishable  by  fine  not  exceeding  five 
hundred  dollars,  or  by  imprisonment  in  the  county  jail  not 
exceeding  six  months,  or  both. 

64    Cal.    341;    66   Cal.    186;    73    Cal.    444;    109    Cal.   266. 

Dogs  property. 

491.  Dogs  are  personal  property,  and  their  value  i§  to  be 
ascertained  in  the  same  manner  as  the  value  of  other  property. 
[Amendment  approved  March  15,  1887;  Stats.  1887,  p.  131.  In 
effect  March  15,  1887.  Act  provides  for  amending  section  491 
of  the  Civil  Code  in  the  body  of  the  act,  but  in  the  title  reads 
"Penal    Code."] 

80    Cal.    549. 

Larceny  of  written    instruments. 

492.  If  the  thing  stolen  consists  of  any  evidence  of  debt,  or 
other  written  instrument,  the  amount  of  money  due  thereupon, 
or  secured  to  be  paid  thereby,  and  remaining  unsatisfied,  or 
which  in  any  contingency  might  be  collected  thereon,  or  the 
value  of  the  property  the  title  to  which  is  shown  thereby,  or  the 
sum  which  might  be  recovered  in  the  absence  thereof,  is  the 
value  of  the  thing  stolen. 

90    Cal.    573. 

Value  of  passage  tickets. 

493.  If  the  thing  stolen  is  any  ticket  or  other  paper  or  writ- 


494-499  PENAL  CODE.  676 

Ing  entitling  or  purporting  to  entitle  the  holder  or  proprietor 
thereof  to  a  passage  upon  any  railroad  or  vessel  or  other  pub- 
lic conveyance,  the  price  at  which  tickets  entitling  a  person  to  a 
like  passage  are  usually  sold  by  the  proprietors  of  such  con- 
veyance  is  the  value  of  such   ticket,   paper,  or  writing. 

Written  instruments  completed  but  not  delivered. 

494.  All  the  provisions  of  this  chapter  apply  where  the  prop- 
erty taken  is  an  instrument  for  the  payment  of  money,  evidence 
of  debt,  public  security,  or  passage  ticket,  completed  and  ready- 
to  be  issued  or  delivered,  although  the  same  has  never  been 
issued  or  delivered  by  the  makers  thereof  to  any  person  as  a 
purchaser  or  owner. 

Severing  and  removing  part  of  the  realty. 

495.  The  provisions  of  this  chapter  apply  where  the  thing 
taken  is  any  fixture  or  part  of  the  realty,  and  is  severed  at  the 
time  of  the  taking,  in  the  same  manner  as  if  the  thing  had  been 
severed  by  another  person  at  some  previous  time. 

Receiver  of  stolen  property. 

496.  Every  person  who,  for  his  own  gain,  or  to  prevent  the 
owner  from  again  possessing  his  property,  buys  or  receives  any 
personal  property,  knowing  the  same  to  have  been  stolen,  is 
punishable  by  imprisonment  in  the  state  prison  not  exceeding 
five  years,  or  in  the  county  jail  not  exceeding  six  months,  or  by 
both;  and  it  shall  be  presumptive  evidence  that  such  property 
was  stolen,  if  the  same  consists  of  jewelry,  silver,  or  plated 
ware,  or  articles  of  personal  ornament,  if  purchasea  or  received 
from  a  person  under  the  age  of  eighteen,,  unless  such  property 
is  sold  by  said  minor  at  a  fixed  place  of  business  carried  on  by 
said  minor  or  his  employer.  [Amendment  approved  February 
28,  1874;  Amendments  1873-4,  p.  464.  In  effect  February  28, 
1874.] 

89  Cal.    499;    90   Cal.    573;    94   Cal.    574. 

Larceny,  and   receiving  stolen  property  out  of  the  state. 

497.  Every  person  who,  in  another  state  or  country,  steals  the 
property  of  another,  or  receives  such  property  knowing  it  to 
have  been  stolen,  and  brings  the  same  into  this  state,  may  be 
convicted  and  punished  in  the  same  manner  as  if  sucn  larceny  or 
receiving  had  been  committed  in  this  state. 

90  Cal.    573;   91   Cal.    27;   122   Cal.    74. 

Stealing   gas. 

498.  Every  person  who,  with  intent  to  injure  or  defraud, 
makes  or  causes  to  be  made  any  pipe,  tube,  or  other  Instru- 
ment, and  connects  the  same,  or  causes  it  to  be  connected,  with 
any  main,  service-pipe,  or  other  pipe  for  conducting  or  supply- 
ing illuminating  gas,  in  such  manner  as  to  supply  Illuminating 
gas  to  any  burner  or  orifice,  by  or  at  which  illuminating  gas  is 
consumed,  around  or  without  passing  through  the  meter  pro- 
vided for  the  measuring  and  registering  the  quantity  consumed, 
or  in  any  other  manner  so  as  to  evade  payment  therefor,  and 
every   person  who,  with  like  intent,  injures  or  alters  any  gas 

meter  or  obstructs  its  action,  is  guilty  of  a  fhisdemeanor. 

I 
Stealing  water. 

499.  Every  person  who,  with  intent  to  injure  or  defraud,  con- 
nects  or  causes  to  be  connected,  any  pipe,  tube,  or  other  instru- 


577  LARCEJJY.  499a-602f 

ment,  with  any  main,  service-pipe,  or  other  pipe,  or  conduit  or 
flume  for  conducting  water,  for  the  purpose  of  talking  water 
from  such  main,  service-pipe,  conduit  or  flume,  without  the 
Itnowledge  of  the  owner  thereof,  and  with  intent  to  evade  pay- 
ment therefor,  is  guilty  of  a  misdemeanor. 

6€    Cal.    215. 

Stealing    electricity    a    misdemeanor. 

499a.  Every  person  who,  with  intent  to  injure  or  defraud, 
shall  unlawfully  connect,  or  procure  another  to  connect,  with 
any  electric  apparatus  or  any  electric  wire,  operated  by  any 
person,  persons  or  corporation  authorized  to  generate,  transmit, 
and-  sell  electric  current,  without  the  linowledge  and  consent 
of  such  person,  persons,  or  corporation  operating  such  appar- 
atus or  wires,  for  the  purpose  of  appropriating  electric  current 
for  light,  power,  heat,  or  other  use,  and  to  evade  payment 
therefor,  or  who  shall,  with  like  intent,  injure  or  alter,  or  who- 
shall  procure  to  be  injured  or  altered,  any  electric  meter  or 
obstruct  its  working,  or  who  shall  procure  the  same  to  be 
maliciously  tampered  with  and  injured,  shall  be  deemed  guilty 
of  a  misdemeanor.     [Stats.  1901,  p.  20.] 

Larceny  of  goods  saved  from  fire  in  San  Francisco. 

500.  Every  person  who,  in  the  city  and  county  of  San  Fran- 
cisco, saves  from  fire  or  from  a  building  endangered  by  fire, 
any  property,  and  for  two  days  thereafter  corruptly  neglects  to 
notify  the  owner  or  fire  marshal  thereof,  is  punishal)le  by  Impris- 
onment in  the  state  prison  for  not  less  than  one  nor  more  than 
ten  years. 

Purchasing  or  receiving  in  pledge  junk,  etc. 

501.  Every  person  who  purchases  or  receives  in  pledge  or  by 
way  of  mortgage  from  any  person  under  the  age  of  sixteen 
years  any  junk,  metal,  mechanical  tools,  or  implements,  is 
guilty  of  a  misdemeanor.  [New  section  approved  March  28,  1872; 
Amendments  1871-2,  p.  684.     Took  effect  with  the  Code.] 

Removal  of  mortgaged  property. 

502%.  Every  person  who,  after  mortgaging  any  real  property, 
and  during  the  existence  of  such  mortgage,  or  after  such  mort- 
gaged property  shall  have  been  sold  under  an  order  and  decree 
of  foreclosure,  and  with  intent  to  defraud  or  injure  the  mort- 
gagee, his  representatives,  successors,  or  assigns,  or  the  pur- 
chaser of  such  mortgaged  premises  at  such  foreclosure  sale,  his 
representatives  or  assigns,  takes,  removes,  or  carries  away  from 
such  mortgaged  premises,  or  otherwise  disposes  of,  or  permits 
the  taking,  removing,  or  carrying  away,  or  otherwise  disposing 
of,  any  house,  barn,  windmill,  or  water-tank,  upon  or  affixed  to 
such  premises  as  an  improvement  thereon,  without  the  written 
consent  of  the  mortgagee,  his  representatives,  successors,  or 
assigns,  or  the  purchaser  at  such  foreclosure  sale,  his  representa- 
tives or  assigns,  is  guilty  of  larceny,  and  shall  be  punished 
accordingly.  [New  section  approved  March  26,  1895;  Stats.  1895. 
p.  77.    In  effect  March  26,  1895.] 


:rimes--37 


503-507  PENAL  CODE.  678 

CHAPTER   VI. 
EMBEZZLEMENT. 

•Sec.    503.  "Embezzlement"  defined. 

504.  When  officer,  etc.,  guilty  of  embezzlement. 

i)05.  Carrier,    when    guilty   of   embezzlement. 

506.  When    trustee,    banker,    etc.,    guilty    of    embezzlement. 

.">07.  AVhen    bailee,    tenant,    or    lodger    guilty    of    embezzlement. 

508.  When   clerk,  agent,   or  servant  guilty  of  embezzlement. 

5(K).  Distinct  act  of  taking. 

510.  Evidence  of  debt  undelivered  a   subject  of  embezzlement. 

511.  Claim  of  title  a  ground  of  defense. 

512.  Intent  to  restore  the  property  is  no  defense. 

513.  Actual  restoration  a  ground  for  mitigation  of  punishment. 

514.  Punishment   for   embezzlement. 

"Embezzlement"  defmed. 

503.  Embezzlement  is  the  fraudulent  appropriation  of  prop- 
erty by  a  person  to  whom  it  has  been  intrusted. 

61  Cal.  135:  69  Cal.  237;  77  Cal.  i6.»;  82  Cal.  586; 
91  Cal.  269;  100  Cal.  468;  108  Cal.  645;  120  Cal.. 
694;  124  Cal.  453;  133  Cal.  280;  133  Cal.  329. 

When  officer,  etc.,  guilty  of  embezzlement. 

504.  Every  ofllcer  of  this  state,  or  of  any  county,  city,  city 
and  county,  or  other  municipal  corporation  or  subdivision 
thereof,  and  every  deputy,  clerk,  or  servant  of  any  such  officer, 
and  every  officer,  director,  trustee,  clerk,  servant,  or  agent  of  any 
association,  society,  or  corporation,  (public  or  private)  who 
fraudulently  appropriates  to  any  use  or  purpose  not  in  the  due 
and  lawful  execution  of  his  trust,  any  property  which  he  has 
in  his  possession  or  under  his  control  by  virtue  of  his  trust,  or 
secretes  it  with  a;  fraudulent  intent  to  appropriate  it  to  such  use 
or  purpose,  is  guilty  of  embezzlement.  [Amendment  approved 
April  6,  1880;  Amendments  1880,  p.  8.     In  effect  April  6,  1880.] 

66  Cal.  274;  69  Cal.  237;  82  Cal.  586;  106  Cal. 
312;    108    Cal.    541;    124    Cal.    453. 

Carrier,  when  guilty  of  embezzlement. 

505.  Every  carrier  or  other  person  having  under  his  control 
personal  property  for  the  purpose  of  transporation  for  hire,  who 
fraudulently  appropriates  it  to  any  use  or  purpose  inconsistent 
with  the  safe-keeping  of  such  property  and  its  transporation 
according  to  his  trust,  is  guilty  of  embezzlement,  whether  he 
has  broken  the  package  in  which  such  property  is  contained,  or 
has  otherwise  separated  the  items  thereof,  or  not. 

When  trustee,  banker,  etc.,  guilty  of  embezzlement. 

506.  Every  trustee,  banker,  merchant,  broker,  attorney,  agent, 
assignee  in  trust,  executor,  administrator,  or  collector,  or  per- 
son otherwise  intrusted  with  or  having  in  his  control  property 
for  the  use  of  any  other  person,  who  fraudulently  appropriates 
it  to  any  use  or  purpose  not  in  the  due  and  lawful  execution  of 
his  trust,  or  secretes  it  with  a  fraudulent  intent  to  appropriate 
it  to  such  use  or  purpose,  is  guilty  of  embezzlement. 

69   Cal.    237;   116   Cal.    390. 

When  bailee,  tenant,  or  lodger  guilty  of  embezzlement. 

507.  Every  person  intrusted  with  any  property  as  bailee,  ten- 
ant, or  lodger,  or  with  any  power  of  attorney  for  the  sale  or 
transfer   thereof,    who   fraudulently   converts   the   same   or   the 


579  EMBEZZLEMENT.  508-514 

proceeds  thereof  to  his  own  use,  or  secretes  it  or  them  with 
a  fraudulent  intent  to  convert  to  his  own  use,  is  guilty  of  embez- 
zlement. 

r.l    Cal.    379;    71   Cal.    3S9;    77    Cal.    563;    133   Cal. 
329. 

When  clerk,  agent,  or  servant  guilty  of  embezzlement. 

508.  Every  clerk,  agent,  or  servant  of  any  person  who  fraud- 
ulently appropriates  to  his  own  use,  or  secretes  with  a  fraud- 
ulent intent  to  appropriate  to  his  own  use,  any  property  of 
another  which  has  come  into  his  control  or  care  by  virtu©  of  his 
employment  as  such  clerk,  agent,  or  servant,  is  guilty  of  embez- 
zlement. 

66  Cal.  345;  69  Cal.  237;  71  Cal.   391;   77  Cal.  182; 
77   Cal.    563;    100  Cal.    468. 

Distinct  act  of  taking. 

509.  A  distinct  act  of  taking  is  not  necessary  to  constitute 
embezzlement. 

Evidence  of  debt  undelivered  a  subject  of  embezzlement. 

510.  Any  evidence  of  debt,  negotiable  by  delivery  only,  and 
actually  executed,  is  the  subject  of  embezzlement,  whether  it 
has  been  delivered  or  issued  as  a  valid  instrument  or  not. 

Claim  of  title  a  ground  of  defense. 

511.  Upon  any  indictment  for  embezzlement,  It  is  a  sufficient 
defense  that  the  property  was  appropriated  openly  and  avowedly, 
and  under  a  claim  of  title  preferred  in  good  faith,  even  though 
such  claim  is  untenable.  But  this  provision  does  not  excuse  the 
unlawful  retention  of  the  property  of  another  to  offset  or  pay 
demands  held  against  him. 

77   Cal.    562;    120   Cal.    26. 

Intent  to  restore  the  property  is  no  defense. 

512.  The  fact  that  the  accused  intended  to  restore  the  prop- 
erty embezzled,  is  no  ground  of  defense  or  of  mitigation  of  pun- 
ishment, if  it  has  not  been  restored  before  an  information  has 
been  laid  before  a  magistrate,  charging  the  commission  of  the 
offense. 

Actual  restoration  a  ground  for  mitigation  of  punishment. 

513.  Whenever,  prior  to  any  information  laid  before  a  magis- 
trate, charging  the  commission  of  embezzlement,  the  person 
accused  voluntarily  and  actually  restored  or  tenuered  restora- 
tion of  the  property  alleged  to  have  been  embezzled,  or  any  part 
thereof,  such  fact  is  not  a  ground  of  defense,  but  it  authorizes 
the  court  to  mitigate  punishment,  in  its  discretion. 

so    Cal.    56. 

Punishment  for  embezzlement. 

514.  Every  person  guilty  of  embezzlement  is  punishable  in 
the  manner  prescribed  for  feloniously  stealing  property  of  the 
value  of  that  embezzled;  and  where  the  propertj  embezzled  is 
an  evidence  of  debt  or  right  of  action,  the  sum  due  upon  It  or 
secured  to  be  paid  by  it,  shall  be  taken  as  its  value:  provided, 
that  if  the  embezzlement  or  defalcation  be  of  the  public  funds 
of  the  United  States,  or  of  this  state,  or  of  any  county,  city  and 
and  county,  or  municipality  within  this  state,  the  offense  is  a 
felony,  and  shall  be  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one  year  nor  more  than  ten  years;  and  the 
person  so  convicted  shall  be  ineligible  thereafter  to  any  office  of 


518-523  PENAL  CODE.  580 

honor,  trust,  or  profit  under  this  state.     [Amendment  approved 
April  6,  1880;  Amendments  1880,  p.  8.    In  effect  April  6,  1880.] 

61    Cal.    136;    91    Cal.    273;    94   Cal.    576;    116    Cal. 
386. 


CHAPTER  VII. 
EXTORTION. 

Sec.    518.  "Extortion"  defined. 

519.  Wlint   throats   may   constitute  extortion. 

520.  Punishment  of  extortion  in  certain  cases. 

521.  Extortion  committed  under  color  of  official  right. 

522.  01)talnlng  signature  by   means  of  threats. 

523.  Sending  threatening  letters  with  Intent  to  extort. 

524.  Attemots  to  extort  by  means  of  verbal  threats. 

525.  Officers   of   railroad   companies   making   ovei-charges. 

"Extortion"  defined. 

518.  Extortion  is  the  obtaining  of  property  from  another,  with 
his  consent,  induced  by  a  wrongful  use  of  force  or  fear,  or  under 
color  of  official  right. 

81    Cal.    277:    93   Cal.    456;    123   Cal.    522;   126   Cal.  367; 

What  threats  may  constitute  extortion. 

519.  Fear,  such  as  will  constitute  extortion,  may  be  induced 
by  a  threat,  either: 

1.  To  do  an  unlawful  Injury  to  the  person  or  property  of  the 
individual  threatened,  or  to  any  relative  of  his,  or  member  of 
his  family;   or, 

2.  To  accuse  him,  or  any  relative  of  his,  or  members  of  his 
family,  of  any  crime;   or, 

3.  To  expose,  or  impute  to  him  or  them  any  deformity  or 
disgrace;  or, 

4.  To  expose  any  secret  affecting  him  or  them. 

57    Cal.    5C3;    63    Cal.    491;    81    Cal.    277;    95 
Cal.    641;    123   Cal.    523;    126   Cal     367. 

Punishment  of  extortion  in  certain  cases. 

520.  Every  person  who  extorts  any  money  or  other  property 
from  another,  under  circumstances  not  amounting  to  robbery, 
by  means  of  force,  or  any  threat,  such  as  is  mentioned  in  the 
preceding  section,  is  punishable  by  imprisonment  in  the  state 
prison  not  exceeding  five  years. 

81   Cal.    279. 

Extortion  committed  under  color  of  official  right. 

521.  Every  person  who  commits  any  extortion  under  color  of 
official  right,  in  cases  for  which  a  different  punishment  is  not 
prescribed  in  this  code,  is  guilty  of  a  misdemeanor. 

Obtaining  signature  by  means  of  threats. 

522.  Every  person  who,  by  any  extortionate  means,  obtains 
from  another  his  signature  to  any  paper  or  instrument,  whereby, 
if  such  signature  were  freely  given,  any  property  would  be  trans- 
ferred, or  any  debt,  demand,  charge,  or  rignt  of  action  created, 
is  punishable  in  the  same  manner  as  if  the  actual  delivery  of 
such  debt,  demand,  charge,  or  right  of  action    were  obtained. 

Sending  threatening  letters  with  intent  to  extort. 

523.  Every  person  who,  with  intent  to  extort  any  money  or 
other  property  from  another,  sends  or  delivers  to  ■  any  person 
any  letter  or  other  writing,  whether  subscribed  or  not,  expres- 


681  EXTORTION — FALSE   PERSONATION.  524-530 

sing  or  implying,  or  adapted  to  imply,  any  threat  such  as  Is 
specified  in  section  519,  is  punishable  in  the  same  manner  as  if 
such  money  or  property  were  actually  obtained  by  means  of  such 
threat. 

SI   Cal.    278;    95  Cal.    641. 

Attempts  to  extort  by  means  of  verbal  threats. 

524.  Every  person  who  unsuccessfully  attempts,  by  means  of 
any  verbal  threat,  such  as  is  specified  in  section  519,  to  extort 
money  or  other  property  from  another,  is  guilty  of  a  misde- 
meanor. 

63    Cal.    491;    123   Cal.    523. 

Officers  of  railroad  companies  making  overcharges. 

525.  Every  officer,  agent,  or  employee  of  a  railroad  company 
who  asks  or  receives  a  greater  sum  than  is  allowed  by  law  for 
the  carriage  of  passengers  or  freight,  is  guilty  of  a  misdemeanor. 

CHAPTER  VIII. 
FALSE  PERSONATION  AND  CHEATS. 

Sec.     528.  Marrying  under  false  personation. 

529.  Falsely  personating  another  in  other  cases. 

530.  Receiving  property  in  a  false  character. 

531.  Fraudulent  conveyances. 

532.  Oljtalnlng  money  by  false  pretenses. 

533.  Selling  land  twice. 

534.  Married   person   selling   land  under   false   representation. 

535.  Mock  auction. 

536.  Consignee,:  false  statement  by. 

.537.    Defrauding  inn   or  boarding-house.  ^ 

.    .537.    Removal   of   mortgaged   chattels. 
537i.  Fraudulent   registration   of   cattle. 
.538.    Further  incumbrance  or  sale. 
538*.  Misrepresentation    of    newspaper    circulation. 

Marrying  under  false  personation. 

528.  Every  person  who  falsely  personates  another,  and  in  such 
assumed  character  marries  or  pretends  to  marry,  or  to  sustain 
the  marriage  relation  towards  another,  with  or  without  the  con- 
nivance of  such  other,  is  guilty  of  a  felony. 

Falsely  personating  another  in  other  cases. 

529.  Every  person  who  falsely  personates  anotber,  and  in 
such  assumed  character,  either: 

1.  Becomes  bail  or  surety  for  any  party  in  any  proceeding 
whatever,  before  any  court  or  officer  authorized  to  take  such 
bail  or  surety;  or. 

2.  Verifies,  publishes,  acknowledges,  or  proves,  in  the  name 
of  another  person,  any  written  instrument,  witu  intent  that  the 
same  may  be  recorded,  delivered,  and  used  as  true;  or, 

3.  Does  any  other  act  whereby,  if  it  were  done  by  the  person 
falsely  personated,  he  might,  in  any  event,  become  liable  to  any 
suit  or  prosecution,  or  to  pay  any  sum  of  money,  or  to  Incur 
any  charge,  forfeiture,  or  penalty,  or  whereby  any  benefit  might 
accrue  to  the  party  personating,  or  to  any  other  person; 

— is  punishable  by  imprisonment  in  the  county  jail  not  ei- 
ceeding  two  years,  or  by  fine  not  exceeding  five  thousand  dollars. 

77    Cal.    437;    119    Cal.    73. 
Receiving  property  in  a  false  character. 

530.  Every  person  who  falsely  personates  another,  and  in  such 
assumed   character   receives   any    money    or   property,    knowing 


531-535  PENAL  CODE.  582 

that  it  is  intended  to  be  delivered  to  the  individual  so  personated, 
with  intent  to  convert  the  same  to  his  own  use,  or  to  that  of 
another  person,  or  to  deprive  the  true  owner  thereof,  is  punish- 
able in  the  same  manner  and  to  the  same  extent  aa  for  larceny 
of  the  money  or  property  so  received, 

127   Cal.    282. 

Fraudulent  conveyances. 

531.  Every  person  who  Is  a  party  to  any  fraudulent  conveyance 
of  any  lands,  tenements,  or  hereditaments,  goods  or  chattels, 
or  any  right  or  interest  issuing  out  of  the  same,  or  lo  any  bond, 
suit,  judgment,  or  execution,  contract  or  conveyance,  nad,  maue, 
or  contrived  with  intent  to  deceive  and  defraud  others,  or  to 
defeat,  hinder,  or  delay  creditors  or  others  of  their  Just  debts, 
damages,  or  demands;  or  who,  being  a  party  as  aforesaid,  at 
any  time  wittingly  and  willingly  puts  in,  uses,  avows,  main- 
tains, justifies,  or  defends  the  same,  or  any  of  tnem,  as  true, 
and  done,  had,  or  made  in  good  faith,  or  upon  good  considera- 
tion, or  aliens,  assigns,  or  sells  any  of  the  lands,  tenements, 
hereditaments,  goods,  chattels,  or  other  things  before  mentioned, 
to  him  or  them  conveyed  as  aforesaid,  or  any  part  thereof,  is 
guilty  of  a  misdemeanor. 

Obtaining  money  by  false  pretenses. 

532.  Every  person  who  knowingly  and  designedly,  by  false  or 
fraudulent  representation  or  pretenses,  defrauds  any  other  per- 
son of  money  or  property,  or  who  causes  or  procures  others  to 
report  falsely  of  his  wealth  or  mercantile  character,  and  by  thus 
imposing  upon  any  person  obtains  credit,  and  thereby  fradulently 
gets  into  possession  of  money  or  property,  is  punishable  in  the 
same  manner  and  to  the  same  extent  as  for  larceny  of  the  money 
or  property  so  obtained.     [Stats.  1889,  p.  14.] 

66  Cal.  11:  70  Cal.  117;  70  Cal.  529;  77  Cal.  174; 

82  Cal.  273;  S4  Cal.  38;  84  Cal.  472:  100  Cal. 
3.54:  102  Cal.  562;  114  Cal.  438;  119  Cal.  597; 
123  Cal.  267;  m  Cal.  282;  133  Cal.  329. 

Selling  land  twice. 

533.  Every  person  who,  after  once  selling,  bartering,  or  dis- 
posing of  any  tract  of  land  or  town  lot,  or  after  executing  any 
bond  or  agreement  for  the  sale  of  any  land  or  town  lot,  again 
wilfully  and  with  intent  to  defraud  previous  or  subsequent 
purchasers,  sells,  barters,  or  disposes  of  the  same  tract  of  land 
or  town  lot,  or  any  part  thereof,  or  wilfully  and  with  intent 
to  defraud  previous  or  subsequent  purchasers,  executes  any 
bond  or  agreement  to  sell,  barter,  or  dispose  of  the  same  land 
Or  lot,  or  any  part  thereof,  to  any  other  person  for  a  valuable 
consideration,  is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  one  nor  more  than  ten  years. 

85    Cal.    87. 

Married  person  selling  land  under  false  representation. 

534.  Every  married  person  who  falsely  and  fraudulently 
represents  himself  or  herself  as  competent  to  sell  or  mortgage 
any  real  estate,  to  the  validity  of  which  sale  or  mortgage  the 
assent  or  concurrence  of  his  wife  or  her  husband  is  necessary, 
and  under  such  representations  wilfully  conveys  or  mortgages 
the  same,  is  guilty  of  felony. 

Mock  auction. 

535.  Every  person  who  obtains  any  money  or  property  from 


583  FALSE    PERSONATION — CHEATS.  536-5374 

another,  oi'  obtains  the  signature  of  another  to  any  written  in- 
strument, the  false  making  of  which  would  be  forgery,  by 
means  of  any  false  or  fraudulent  sale  of  property  or  pretended 
property,  by  auction,  or  by  any  of  the  practices  Known  as  mock 
auctions,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  three  years,  or  in  the  county  jail  not  exceeding 
one  year,  or  by  fine  not  exceeding  one  thousand  dollars,  or  by 
both  such  fine  and  imprisonment;  and,  in  addition  thereto,  for- 
feits any  license  he  may  hold  as  auctioneer,  and  is  forever  dis- 
qualified from  receiving  a  license  to  act  as  auctioneer  within 
this  state. 

Consignee,  false  statement  by. 

536.  Every  commission  merchant,  broker,  agent,  factor,  or 
consignee,  who  shall  wilfully  and  corruptly  make,  or  cause  to 
be  made,  to  the  principal  or  consignor  of  such  commission  mer- 
chant, agent,  broker,  factor,  or  consignee,  a  false  statement  con- 
cerning the  price  obtained  for,  or  the  quality  or  quantity  of 
any  property  consigned  or  intrusted  to  such  commission  mer- 
chant, agent,  broker,  factor,  or  consignee,  for  sale,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof, 
shall  be  punished  by  fine  not  exceeding  five  hundred  dollars, 
or  imprisoned  in  the  county  jail  not  exceeding  six  months, 
or  by  both  such  fine  and  imprisonment.  [New  Section  approved 
April  15,  1880;  Amendments  1880,  p.  37.  In  effect  April  15, 
1880.] 

Defrauding   inn   or  boarding  house. 

537.  Any  person  who  obtains  any  food  or  accommodation  at 
an  inn  or  boarding  house  without  paying  therefor,  with  intent 
to  defraud  the  proprietor  or  manager  thereof,  or  who  obtains 
credit  at  an  inn  or  boarding  house  by  the  use  of  any  false  pre- 
tense, or  who,  after  obtaining  credit  or  accommodation  at  any 
inn  or  boarding  house,  absconds  and  surreptitiously  removes 
his  baggage  therefrom  without  paying  for  his  food  or  accom- 
modations, is  guilty  of  a  misdemeanor.  [New  section  approved 
March  1.  1889;    Stats.   1889,  p.  44.) 

119    Cal.     4JS;     121    Cal.     r2;). 

Removal  of  mortgaged  chattels. 

537.  Every  person  who,  afjter  mortgaging  any  of  the  prop- 
erty mentioned  in  section  two  thousand  nine  hundred  and  fifty- 
five  of  the  Civil  Code,  excepting  locomotives,  engines,  rolling 
stock  of  a  railroad,  steamboat  machinery  in  actual  use,  and 
vessels,  during  the  existence  of  such  mortgage,  with  the  intent 
to  defraud  the  mortgagee,  his  representatives  or  assigns,  trans- 
fers, sells,  takes,  drive?,  or  carries  away,  or  otherwise  disposes 
of,  or  permits  the  transferring,  selling,  taking,  driving,  or 
carrying  away,  or  otherwise  disposing  of  such  mortgaged  prop- 
erty, or  an^"  part  thereof,  from  the  county  where  it  was  situated 
at  the  time  it  was  mortgaged,  without  the  written  consent  of  the 
mortgagee,  is  guilty  of  larceny,  and  shall  be  punished  accord- 
ingly. [Amendments  approved  March  9,  1893;  Stats.  1893,  p. 
119.    In  effect  immediately.! 

Fraudulent   registration   of  cattle. 

537%.  Every  person  who  shall,  by  any  false  or  fraudulent 
pretense,  obtain  from  any  club,  association,  society,  or  com- 
pany organized  for  the  purpose  of  improving  the  breed  of  cat- 


538-539  PENAL  CODE.  684 

tie,  horses,  sheep,  swine,  or  other  domestic  animals,  a  certifi- 
cate of  registration  of  any  animal  in  the  herd  register,  or  any 
other  register  of  any  such  club,  association,  society,  or  com- 
pany, or  a  transfer  of  any  such  registration;  and  any  person 
who  shall,  for  a  legal  consideration,  give  a  false  pedigree  of 
any  animal,  with  intent  to  mislead,  shall  be  guilty  of  a  mis- 
demeanor. 

Sec.  2.  Every  person  wilfully  advertising  any  of  such  ani- 
mals for  purposes  of  copulation,  of  profit,  as  having  a  pedigree 
other  than  the  true  pedigree  of  such  animal,  shall  forfeit  all 
right  by  law  to  collect  pay  for  the  services  of  said  animal.  [New 
section  approved  February  25,  1889;  Stats.  1889,  p.  35.  In  effect 
February  25,  1889.J 

Further  incumbrance   or  sale. 

538.  Every  person  who,  after  mortgaging  any  of  the  property 
mentioned  in  section  two  thousand  nine  hundred  and  fifty-five 
of  the  Civil  Code,  excepting  locomotives,  engines,  rolling  stock 
of  a  railroad,  steamboat  machinery  in  actual  use,  and  vessels, 
during  the  existence  of  such  mortgage,  sells,  transfers,  or  in 
any  manner  further  encnmbers  the  said  mortgaged  property, 
or  any  part  thereof,  or  causes  the  same  to  be  sold,  transferred, 
or  further  encumbered,  is  guilty  of  larceny,  and  shall  be  pun- 
ished accordingly;  unless  at  or  before  the  time  of  making  such 
sale,  transfer,  or  encumbrance,  such  mortgagor  shall  inform 
the  person  to  whom  such  sale,  transfer,  or  encumbrance  may 
be  made,  of  the  existence  of  the  prior  mortgage,  and  shall  In- 
form the  prior  mortgagee  of  the  intended  sale,  transfer,  or 
encumbrance,  in  writing,  by  giving  the  name  and  place  of  resi- 
dence of  the  party  to  whom  the  sale,  transfer,  or  encumbrance 
is  to  be  made.  [New  section  added  March  9,  1893;  Stats.  1893, 
p.  120.    In  effect  immediately.] 

119  Cal.   488. 

Misrepresentation  of  newspaper  circulation. 

538.  Every  proprietor  or  publisher  of  any  newspaper  or 
periodical,  who  shall  wilfully  and  knowingly  misrepresent  the 
circulation  of  such  newspaper  or  jperiodical,  for  the  purpose 
of  securing  advertising  or  other  patronage,  shall  be  '.eomed 
guilty  of  a  misdemeanor.  [New  section  added  March  11.  1893; 
Stats.  1893,  p.  132.     In  effect  immediately.] 

CHAPTER  IX. 

FRAUDULENTLY        FITTING       OUT       AND       DESTROYING 

VESSELS. 

Sec.    530.    raptain   or  other   oflioor   wilfully   destroying  vessel,   etc. 
340.    Other   person   wilfully  destroying  vessel,   etc. 
.541.     Making   false    manifest,    etc 
.">43A.  "Wearing    badge    of    secret    order. 

Captain  or  other  officer  wilfully  destroyinq  vessel,  etc. 

539.  Every  captain  or  other  officer  or  person  in  command 
or  charge  of  any  vessel,  who,  within  this  state,  wilfully  wrecks, 
sinks,  or  otherwise  injures  or  destroys  such  vessel,  or  any  cargo 
in  such  vessel,  or  wilfully  permits  the  same  to  be  wrecked, 
sunk,  or  otherwise  injured  or  destroyed,  witn  intent  to  prejudice 
or  defraud  any  other  person,  is  punishable  by  imprisonment  in 
the  state  prison  not  less  than  three  years. 


685  CHEATS DESTROYING    VESSELS.  540-548 

Other  person  wilfully  destroying  vessel,  etc. 

540.  Every  person,  other  than  such  as  are  embraced  within 
the  last  section,  who  is  guilty  of  any  act  therein  specified,  Is 
punishable  by  imprisonment  in  the  state  prison  for  a  term  not 
exceeding  ten  years. 

Making  false  manifest,  etc. 

541.  Every  person  guilty  of  preparing,  making,  or  subscrib- 
ing any  false  or  fraudulent  manifest,  invoice,  bill  of  lading, 
ship's  register,  or  protest,  with  intent  to  defraud  another,  is 
punishable  by  imprisonment  in  the  state  prison  not  exceeding 
three  years. 

Wearing  badge  of  secret  order. 

54314.  Any  person  who  wilfully  wears  the  badge,  lapel  but- 
ton, rosette,  or  other  recognized  and  established  insignia  of 
any  secret  society,  order,  or  organization,  or  uses  the  same  to 
obtain  aid  or  assistance  within  this  state,  unless  entitled  to 
wear  or  use  the  same,  under  the  constitution,  by-laws,  or  rules 
and  regulations,  or  other  laws  or  enactments  of  such  order  or 
society,  is  guilty  of  a  misdemeanor.  [In  effect  March  11,  1899; 
Stats.,  p.  90.] 

CHAPTER  X. 

FRAUDULENTLY     KEEPING     POSSESSION     OF     WRECKED 

PROPERTY. 

Sec.    .544.    Detainin.sr   wrecked  property  after   salvage   paid. 
54."i.    Unlawful'  taking  of  wrecked  property. 

Detaining  wrecked  property  after  salvage  paid. 

544.  Every  person  who  keeps  any  wrecked  property,  or  the 
proceeds  thereof,  after  the  salvage  and  expenses  chargeable 
thereon  have  been  agreed  to  or  adjusted,  and  the  amount  there- 
of has  been  paid  to  him,  is  punishable  by  fine  not  exceeding 
one  thousand  dollars,  or  by  imprisonment  in  the  county  jail  not 
exceeding  one  year,  or  both. 

Unlawful  taking  of  wrecked  property. 

545.  Every  person  who  takes  away  any  goods  from  any 
stranded  vessel,  or  any  goods  cast  by  the  sea  upon  the  land, 
or  found  in  any  bay  or  creek,  or  knowingly  has  in  his  posses- 
sion any  goods  so  taken  or  found,  and  does  not  deliver  the 
same  to  the  sheriff  of  the  county  where  they  were  found,  or 
notify  him  of  his  readiness  to  do  so  within  tnirty  days  after 
the  same  have  been  taken  by  him,  or  have  come  into  his  pos- 
session, is  guilty  of  a  misdemeanor. 


CHAPTER  XI. 
FRAUDULENT    DESTRUCTION    OF    PROPERTY    INSURED. 

■Sec.    r>48.    Burning  or   destroying   property   insured. 

.i49.    Presenting   false    proofs    upon    policy   of   insurance. 

Burning  or  destroying   property   insured. 

548.  Every  person  who  wilfully  burns,  or  in  any  other  man- 
ner injures  or  destroys  any  property  which  is  at  the  time  in- 
sured against  loss  or  damage  by  fire  or  by  any  other  casualty, 
■with   intent   to   defraud   or   prejudice   the   insurer,   whether  the 


549-555  PENAL  CODE.  586 

same  be  the  property  of  or  in  possession  of  such  person  or  of 
any  other,  is  punishable  by  Imprisonment  in  the  state  prison 
not  less  than  one  nor  more  than  ten  years. 

120    Cal.    169;    120   Cal.    687. 
Presenting  false  proofs  upon  policy  of  insurance. 

549.  Every  person  who  presents  or  causes  to  be  presented 
any  false  or  fraudulent  claim,  or  any  proof  in  support  of  any 
such,  claim,  upon  any  contract  of  insurance  for  lue  payment  of 
any  loss,  or  who  prepares,  makes,  or  subscribes  any  account, 
certificate  of  survey,  affidavit,  or  proof  of  loss,  or  otner  book, 
paper,  or  writing  with  intent  to  present  or  use  the  same,  or  to 
allow  it  to  be  presented  or  used  in  support  of  any  such  claim, 
is  punishable  by  imprisonment  in  the  state  prison  not  exceeding 
three  years,  or  by  a  fine  not  exceeding  one  thousand  dollars,  or 
by  both. 

CHAPTER  XII. 
FALSE  WEIGHTS  AND  MEASURES. 

Sec.    552.  "False  weight"  and  "measure"  dcfiued. 

553.  Using   false   weights  or   measures. 

554.  Stamping   false   weight,    etc.,    on    casks    or   packages. 

555.  Weight  l)y  the  ton  or  pound. 

"False  weight"  and  "measure"  defined. 

552.  A  false  weight  or  measure  is  one  which  does  not  con- 
form to  the  standard  established  by  the  laws  of  the  United 
States  of  America. 

Using  false  weights  or  measures. 

553.  Every  person  who  uses  any  weight  or  measure,  know- 
ing it  to  be  false,  by  which  use  another  is  defrauded  or  other- 
wise injured,  is  guilty  of  a  misdemeanor. 

Stamping  false  weight,  etc.,  on  casks  or  packages. 

554.  Every  person  who  knowingly  marks  or  stamps  false 
or  short  weight  or  measure,  or  false  tare,  on  any  cask  or  pack- 
age, or  knowingly  sells,  or  offers  for  sale,  any  cask  or  package 
so  marked,  is  guilty  of  a  misdemeanor. 

Weight  by  the  ton  or  pound. 

555.  In  all  sales  of  coal,  hay,  and  other  commooities,  usually 
sold  by  the  ton  or  fractional  parts  thereof,  the  seller  must  give 
to  the  purchaser  full  weight,  at  the  rate  of  two  thousand  pounds 
to  the  ton;  and  in  all  sales  of  articles  which  are  sold  in  com- 
merce by  avoirdupois  weight,  the  seller  must  give  to  the  pur- 
chaser full  weight,  at  the  rate  of  sixteen  ounces  to 
the  pound;  and  any  person  violating  this  section  is\  guilty  of  a 
misdemeanor.  [New  section  approved  February  15,  1876; 
Amendments  1875-76,  p.   112.     In  effect  in  sixty  days.l 


587  FRAUDULENT  INSOLVENCIES.  557-560 

CHAPTER  XIII. 

FRAUDULENT    INSOLVENCIES    BY    CORPORATIONS,    AND 
OTHER  FRAUDS  IN  THEIR  MANAGEMENT. 

Sec.    5.57.  Frauds  In   subscriptions  for  stocli   of  corporations. 

558.  Frauds  in  procuring  organization,  etc  ,  of  corporation. 

559.  Uuautliorized  use  of  names  in   prospectus,  etc. 
56().  Misconduct  of  directors  of   stocli   corporations. 

561.  Savings-hank  officer  overdrawing  liis  account. 

562.  liecelving  deposits  in  insolvent  lianks. 

563.  Frauds    In    keeping   accounts    in    l>ooks   of   corporations. 

564.  Officer  of  corporation  publishing  false  reports, 

565.  Officer  of  cori)oratiou  to  permit  au   insi)ection 

566.  Officer    of    railroad    company    contracting    debt    in    its    behalf 

exceeding  its  available  means. 

567.  Debt   contracted   in  violation  of  last  section  not  invalid. 

568.  Director  of  a  corporation]  presumed  to  have  knowledge  of  Its 

affairs. 

560.  Director  present  at  meeting,   when  presumed  to  have  assented 

to  proceedings. 

570.  Director  absent  from  meeting,  when  presumed  to  have  assented 

to   proceedings. 

571.  Foreign    corporations. 

572.  "Dii-ector"  defined. 

Frauds  in  subscriptions  for  stock  of  corporations. 

557.  Every  person  who  signs  the  name  of  a  fictitious  person 
to  any  subscription  for  or  agreement  to  talie  stock  in  any  cor- 
poration existing  or  proposed,  and  every  person  w^ho  signs  to 
any  subscription  or  agreement  the  name  of  any  person,  know- 
ing that  such  person  has  not  means  or  does  not  intend  in  good 
faith  to  comply  with  all  the  terms  thereof,  or  under  any  under- 
standing or  agreement  that  the  terms  of  such  subscription  or 
agreement  are  not  to  be  complied  with  or  enforced,  is  guilty  of 
a  misdemeanor. 

Frauds   in   procuring  organization,  etc.,  of  corporation. 

558.  Every  officer,  agent,  or  clerk  of  any  corporation,  or  of  any 
persons  proposing  to  organize  a  corporation,  or  to  increase 
the  capital  stock  of  any  corporation,  who  knowingly  exhibits 
any  false,  forged,  or  altered  book,  paper,  voucher,  security,  or 
other  instrument  of  evidence  to  any  public  oflBcer  or  board 
authorized  by  law  to  examine  the  organization  o£  such  cor- 
poration, or  to  investigate  its  affairs,  or  to  be  allowed  an  in- 
crease of  its  capital,  with  intent  to  deceive  such  officer  or  board 
in  respect  thereto,  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  three  nor  more  than  ten  years. 

Unautliorized  use  of  names  in  prospectus,  etc. 

559.  Every  person  who,  without  being  authorized  so  to  do, 
subscribes  the  name  of  another  to  or  inserts  the  name  of  another 
in  any  prospectus,  circular,  or  other  advertisement,  or  announce- 
ment of  any  corporation  or  joint-stock  association,  existing  or 
intended  to  be  formed,  with  intent  to  permit  the  same  to  be 
published,  and  thereby  to  lead  persons  to  believe  that  the  per- 
son whose  name  is  so  subscribed  is  an  oflicer,  agent,  member 
or  promoter  of  such  corporation  or  association,  is  guilty  of  a 
misdemeanor. 

Misconduct  of  directors  of  stock  corporations. 

560.  Every  director  of  any  stock  corporation  who  concurs 
in  any  vote  or  act  of  the  directors  of  such  corporation  or  any 
of  them,  by  which  it  is  intended,  either: 


661-664  PENAL  CODE.  588 

1.  To  make  any  dividend,  except  from  the  surplus  profits  aris- 
ing from  the  business  of  the  corporation,  and  in  the  cases  and 
manner  allowed  by  la"w;  or, 

2.  To  divide,  withdraw,  or  in  any  manner,  except  as  pro- 
vided by  law,  pay  to  the  stockholders,  or  any  of  them,  any  part 
of  the  capital  stock  of  the  corporation;   or, 

3.  To  discount  or  receive  any  note  or  other  evidence  of  debt 
in  payment  of  any  installment  actually  called  in  and  required 
to  be  paid,  or  with  the  intent  to  provide  the  means  of  maKing 
such  payment;  or, 

4.  To  receive  or  discount  any  note  or  other  evidence  of  debt, 
with  the  intent  to  enable  any  stockholder  to  withdraw  any  part 
of  the  money  paid  in  by  him,  or  his  stock;   or, 

5.  To  receive  from  any  other  stock  corporation,  in  exchange 
for  the  shares,  notes,  bonds,  or  other  evidences  of  debt  of  their 
own  corporation,  shares  of  the  capital  stock  of  such  other  cor- 
poration, or  notes,  bonds,  or  other  evidences  of  debt  issued  by 
such  other  corporation; 

— Is  guilty  of  a  misdemeanor. 

72    Cal.     56;    116    Cal.    415. 

Savings-bank   officer  overdrawing    his   account. 

561.  Every  officer,  agent,  teller,  or  clerk  of  any  savings  bank, 
who  knowingly  overdraws  his  account  with  such  bank,  and 
thereby  wrongfully  obtains  the  money,  note,  or  funds  of  such 
bank,  is  guilty  of  a  misdemeanor. 

Receiving  deposits  in   insolvent  banks. 

562.  Every  officer,  agent,  teller,  or  clerk  of  any  bank,  and 
every  individual  banker,  or  agent,  teller,  or  clerk  of  any  indi- 
vidual banker,  who  receives  any  deposits,  knowing  that  such 
bank,  or  association,  or  banker  is  insolvent,  is  guilty  of  a  mis- 
demeanor. 

Frauds  in  keeping  accounts  in  books  of  corporations. 

563.  Every  director,  officer,  or  agent  of  any  corporation  or 
joint-stock  association,  who  knowingly  receives  or  possesses 
himself  of  any  property  of  such  corporation  or  association, 
otherwise  than  in  payment  of  a  just  demand,  and  who,  with 
intent  to  defraud,  omits  to  make,  or  to  cause  or  direct  to  be 
made,  a  full  and  true  entry  thereof  in  the  books  or  accounts 
of  such  corporation  or  association,  and  every  director,  officer, 
agent,  or  member  of  any  corporation  or  joint-stock  association 
who,  with  intent  to  defraud,  destroys,  alters,  mutilates,  or 
falsifies  any  of  the  books,  papers,  writings,  or  securities  belong- 
ing to  such  corporation  or  association,  or  makes,  or  concurs 
in  making,  any  false  entries,  or  omits,  or  concurs  in 
omitting  to  make  any  material  entry  in  any  book  of  ac- 
counts, or  other  record  or  document  kept  by  such  corporation 
or  association,  is  punishable  by  imprisonment  in  the  state  pris- 
on not  less  than  three  nor  more  than  ten  years,  or  by  impris- 
onment in  a  county  jail  not  exceeding  one  year,  and  a  fine  not 
exceeding  five  hundred  dollars,  or  by  both  such  fine  and  im- 
prisonment. 

:>:?    Cal.    615;    103    Cal.    202. 

Officer  of  corporation  publishing  false  reports. 

564.  Every  director,  officer,  or  agent  of  any  corporation  or 
joint-stock  association,  who  knowingly  concurs  in  making,  pub- 


589  FRAUDULENT  INSOLVENCIES.  565-570 

lishing,  or  posting  any  written  report,  exhibit,  or  statement  of 
its  affairs  or  pecuniary  condition,  or  book  or  notice  containing 
any  material  statement  which  is  false,  or  refuses  to  make  any 
book  or  post  any  notice  required  by  law,  in  the  manner  required 
by  law,  other  than  such  as  are  mentioned  in  this  chapter,  is 
guilty  of  a  felony.  [Amendment  approved  January  27,  1876; 
Amendments  1875:6,  p.  113.     In  effect  in  sixty  days.] 

53  Cal.   648. 

Officer  of  corporation  to  permit  an  inspection. 

565.  Every  officer  or  agent  of  any  corporation,  having  or 
keeping  an  office  within  this  state,  who  has  in  his  custody  or 
control  any  book,  paper,  or  document  of  such  corporation,  and 
who  refuses  to  give  to  a  stockholder  or  member  of  such  cor- 
poration, lawfully  demanding,  during  office  hours,  to  inspect  or 
take  a  copy  of  the  same,  or  of  any  part  thereof,  a  reasonable 
opportunity  so  to  do,  is  guilty  of  a  misdemeanor. 

Officer    of    railroad    company    contracting    debt    in     its    behalf 
exceeding  its  available  means. 

566.  Every  officer,  agent,  or  stockholder  of  any  railroad  com- 
pany, who  knowingly  assents  to  or  has  any  agency  m  contract- 
ing any  debt  by  or  on  behalf  of  such  company,  unauthorized 
by  a  special  law  for  the  purpose,  the  amount  of  which  debt, 
with  other  debts  of  the  company,  exceeds  its  available  means 
for  the  payment  of  its  debts,  in  its  possession,  under  its  con- 
trol, and  belonging  to  it  at  the  time  such  debt  is  contracted, 
including  its  bona  fide  and  available  stock  subscriptions,  and 
exclusive  of  its  real  estate,  is  guilty  of  a  misdemeanor. 

Debt  contracted  in  violation  of  last  section  not  invalid. 

567.  The  last  section  does  not  affect  the  validity  of  a  debt 
created  in  violation  of  its  provisions,  as  against  the  company. 

Director   of   a   corporation    presumed   to    have    knowledge   of    Its 
affairs. 

568.  Every  director  of  a  corporation  or  joint-stock  associa- 
tion is  deemed  to  possess  such  a  knowledge  of  the  affairs  of  his 
corporation  as  to  enable  him  to  determine  whether  any  act,  pro- 
ceeding, or  omission  of  its  directors  is  a  violation  of  this  chap- 
ter. 

Director  present  at  meeting,  when  presumed  to  have  assented  to 
proceedings. 

569.  Every  director  of  a  corporation  or  joint-stock  associa- 
tion who  is  present  at  a  meeting  of  the  directors  at  which  any 
act,  proceeding,  or  omission  of  such  directors,  in  violation  of 
this  chapter  occurs,  is  deemed  to  have  concurred  therein,  unless 
he  at  the  time  causes  or  in  writing  requires  his  dissent  there- 
from to  be  entered  in  the  minutes  of  the  directors. 

Director  absent  from  meeting,  when  presumed  to  have^  assented 
to    proceedings. 

570.  Every  director  of  a  corporation  or  joint-stock  associa- 
tion, although  not  present  at  a  meeting  of  the  directors  at  which 
any  act,  proceeding,  or  omission  of  such  directors,  in  violation 
of  this  chapter  occurs,  is  deemed  to  have  concurred  therein,  if 
the  facts  constituting  such  violation  appear  on  the  records  or 
minutes  of  the  proceedings  of  the  board  of  directors,  and  he 
remains  a  director  of  the  same  company  for  six  months  there- 
after, and  does  not  within  that  time  cause,  or  in  writing  require,. 


671-579  PENAL  CODE.  590 

his  dissent  from  such  illegality  to  be  entered  in  the  minutes  of 
the  directors. 

Foreign  corporations. 

571.  It  is  no  defense  to  a  prosecution  for  a  violation  of  the 
provisions  of  this  chapter,  that  the  corporaton  was  one  created 
by  the  laws  of  another  state,  government,  or  country,  if  It  was 
one  carrying  on  business  or  keeping  an  office  therefor  within 
this  state. 

"Director"  defined. 

572.  The  term  "director,"  as  used  in  this  chapter,  embraces 
any  of  the  persons  having  by  law  the  direction  or  management 
of  the  affairs  of  a  corporation,  by  whatever  name  such  persons 
are  described  in  its  charter  or  known  by  law. 

CHAPTER  XIV. 
FRAUDULENT  ISSUE  OF  DOCUMENTS  OF  TITLE  TO  MER- 
CHANDISE. 

Sec.    r»77.  Issuing  flctitions  hills  of  lading,  oto. 

578.  Issuing  fictitious  warohonse  r(*feii)ts. 

579.  KrroneoM.s  bills  of  lading  or  receipts  issued  in  good  faith. 

580.  Duplicate  receipts  must  be  marked   "•duplicate." 

.")81.    Selling,   etc.,    property   received   for   transportation   or  storage. 
.583.    Property  demanded  by  process  of  law. 

Issuing  fictitious  bills  of  lading,  etc. 

577.  EJvery  person,  being  the  master,  owner,  or  agent  of  any 
vessel,  or  officer  or  agent  of  any  railroad,  express,  or  transporta- 
tion company,  or  otherwise  being  or  representing  any  carrier, 
who  delivers  any  bill  of  lading,  receipt,  or  other  voucher,  by 
which  it  appears  that  any  merchandise  of  any  description  has 
been  shipped  on  board  any  vessel,  or  delivered  to  any  railroad, 
express,  or  transportation  company  or  other  carrier,  unless  the 
same  has  been  so  shipped  or  delivered,  and  is  at  the  time  act- 
ually under  the  control  of  such  carrier,  or  the  master,  owner,  or 
agent  of  such  vessel,  or  of  some  officer  or  agent  of  such  com- 
pany, to  be  forwarded  as  expressed  in  such  bill  of  lading,  receipt, 
or  voucher,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both. 

Issuing  fictitious  warehouse  receipts. 

578.  Every  person  carrying  on  the  business  of  a  warehouse- 
man, wharfinger,  or  other  depositary  of  property,  who  issues 
any  receipt,  bill  of  lading,  or  other  voucher  for  any  merchandise 
of  any  description,  which  has  not  been  actually  received  upon 
the  premises  of  such  person,  and  is  not  under  his  actual  con- 
trol at  the  time  of  issuing  such  instrument,  whether  such  instru- 
ment is  issued  to  a  person  as  being  the  owner  of  such  mer- 
chandise or  as  security  for  any  indebtedness,  is  punishable  by 
imprisonment  in  the  state  prison  not  exceeding  five  years,  or  t)y 
a  fine  not  exceeding  one  thousand  dollars,  or  both. 

Erroneous  bills  of  lading  or  receipts  issued  in  good  faith. 

579.  No  person  can  be  convicted  of  an  offense  under  the  last 
two  sections  by  reason  that  the  contents  of  any  barrel,  box, 
case,  cask,  or  other  vessel  or  package  mentioned  In  the  bill 
of  lading,   receipt,   or  other  voucher    did   not  correspond   with 


591  FRAUDULENT  ISSUE  OF  DOCUMENTS.  580-588 

the  description  given  in  such  instrument  of  the  merchandise 
received,  if  such  description  corresponded  substantially  with 
the  marlts,  labels,  or  brands  upon  the  outside  of  such  vessel,  or 
package,  unless  it  appears  that  the  accused  knew  that  such 
marks,  labels,  or  brands    were  untrue. 

Duplicate  receipts  must  be  marked  "duplicate." 

580.  Every  person  mentioned  in  this  chapter,  who  issues  any 
second  or  duplicate  receipt  or  voucher,  of  a  kind  specified 
therein,  at  a  time  while  any  former  receipt  or  voucher  for  the 
merchandise  specified  in  such  second  receipt  is  outstanding  and 
uncanceled,  without  writing  across  the  face  of  the  same  the  word 
"duplicate,"  in  a  plain  and  legible  manner,  is  punishable  by 
Imprisonment  in  the  state  prison  not  exceeding  five  years,  or  by 
a  fine  riot  exceeding  one  thousand  dollars,  or  both. 

Selling,  etc.,  property  received  for  transportation  or  storage. 

581.  Every  person  mentioned  in  this  chapter,  who  sells, 
hypothecates,  or  pledges  any  merchandise  for  which  any  bill  of 
lading,  receipt,  or  voucher  has  been  issued  by  him,  without  the 
consent  in  writing  thereto  of  the  person  holding  such  bill, 
receipt,  or  voucher,  is  punishable  by  imprisonment  in  the  state 
prison  not  exceeding  five  years,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  both. 

Property  demanded  by  process  of  law. 

583.  The  last  two  sections  do  not  apply  where  property  is 
demanded  or  sold  by  virtue  of  process  of  law. 

CHAPTER  XV. 

MALICIOUS  INJURIES  TO  RAILROAD  BRIDGES,  HIGHWAYS, 

BRIDGES,   AND  TELEGRAPHS. 

Sec.    .'jST.  Injuries   to   raUroarts   and    raih'oad   bridges. 

r^SS.  Injuries    to   highways,    private    ways,    and    bridges. 

T>89.  Injuries  to  toll-houses  and  gates. 

.590.  Injuries  to  milestones  and  guide-boards. 

i591.  Injuring   telegraph   lines. 

,592.  Taking  water  from  or  obstructing  canals. 

593.  Penalty '  for  Interference  with  electric  wires. 

Injuries  to  railroads  and  railroad  bridges. 

587.  Every  person  who  maliciously,  either: 

1.  Removes,  displaces,  injures,  or  destroys  any  part  of  any 
railroad,  whether  for  steam  or  horse  cars,  or  any  track  of  any 
railroad,  or  any  branch  or  branch  way,  switch,  turnout,  bridge, 
viaduct,  culvert,  embankment,  station-house,  or  other  structure 
or  fixture,  or  any  part  thereof,  attached  to  or  connected  with 
any  railroad;  or, 

2.  Places  any  obstruction  upon  the  rails  or  track  of  any  rail- 
road, or  of  any  switch,  branch,  branchway,  or  turnout  connected 
with  any  railroad; 

— Is  punishable  by  imprisonment  in  the  state  prison  not  exceed- 
ing five  years,  or  in  the  county  jail  not  less  than  six  months. 

75   Ca,l.    571. 

Injuries  to  highways,  private  ways,  and  bridges. 

588.  Every  person  who  maliciously  digs  up,  removes,  dis- 
places, breaks,  or  otherwise  injures  or  destroys  any  public  high- 
way or  bridge,  or  any  private  way  laid  out  by  authority  of  law, 
or  bridge  upon  such  highway  or  private  way,  is  punishable  by 


589-593  PENAL  CODE.  592 

imprisonment  in  the  state  prison  not  exceeding  five  years,  or  in 
the  county  jail  not  exceeding  one  year. 

Injuries  to  toll  houses  and  gates. 

589.  Every  person  who  maliciously  injures  or  destroys  any 
loll-house  or  turnpike  gate,  is  guilty  of  a  misdemeanor. 

Injuries  to  milestones  and  guide-boards. 

590.  Every  person  who  maliciously  removes  or  injures  any 
mile-board,  post,  or  stone,  or  guide-post,  or  any  inscription  on 
such,  erected  upon  any  highway,  is  guilty  of  a  misdemeanor. 

Injuring  telegraph  lines. 

591.  Every  person  who  maliciously  takes  down,  removes, 
injures,  or  obstructs  any  line  of  telegraph,  or  any  part  thereof, 
or  appurtenance  or  apparatus  connected  therewith,  or  severs 
any  wire  thereof,  is  guilty  of  a  misdemeanor. 

127    Cal.    317. 

Taking  water  from  or  obstructing  canals. 

592.  Every  person  who  shall  without  authority  of  the  owner 
or  managing  agent,  and  with  intent  to  defraud,  take  water  from 
any  canal,  ditch,  flume  or  reservoir  used  for  the  purpose  of 
holding  or  conveying  water  for  manufacturing,  agricultjiral, 
mining,  irrigating  or  generation  of  power,  or  domestic  uses,  or 
who  shall  without  like  authority,  raise,  lower  or  otherwise  dis- 
turb any  gate  or  other  apparatus  thereof,  used  for  me  control 
or  measurement  of  water,  or  who  shall  empty  or  place,  or  cause 
to  be  emptied  or  placed,  into  any  such  canal,  ditch,  flume  or 
reservoir,  any  rubbish,  filth  or  obstruction  to  the  free  flow  of* 
the  water,  is  guilty  of  a  misdemeanor.     [Stats.  1899,  p.  146.] 

Penalty  for  interference  with  electric  wires. 

593.  Every  person  who  unlawfully  and  maliciously  takes 
down,  removes,  injures,  interferes  with,  or  obstructs  any  line 
erected  or  maintained  by  proper  authority  for  the  purpose  of 
transmitting  electricity  for  light,  heat,  or  power,  or  any  part 
thereof,  or  any  insulator  or  cross-arm,  appurtenance  or  appar- 
atus connected  therewith,  or  severs  or  in  any  way  interferes 
with  any  wire,  cable,  or  current  thereof,  is  punishable  by 
imprisonment  in  the  state  prison  not  exceeding  five  years,  or 
by  fine  not  exceeding  five  hundred  dollars,  or  imprisonment  in 
the  county  jail  not  exceeding  one  year.     [Stats.  1901,  p.  92.] 


693  MALICIOUS  INJURIES — MISCHIEF.  594-598^^ 

TITLE  XIV. 
MALICIOUS  MISCHIEF. 

Sec.    504.  Malicious  mischief  In  general,  defined. 

595.  Specifications    In    following    sections    not    restrictive    of    last 

section. 

59G.  Poisoning  cattle. 

.597.  Killing,  maiming,  or  torturing  animals. 

.598.  Killing,  etc..  birds  in  cemeteries. 

6(H).  Burning  buildings,   etc.,   not  tlie  subject  of  arson. 

601.  Using  gunpowder,  etc.,  in  destroying  or  injuring  any  buildings. 

602.  Malicious  injuries  to  freehold. 

60.3.  Limitation  upon  the  operations  of  the  preceding  section. 

604.  Injuries  to  standing  crops. 

605.  Removing,  defacing,  or  altering  landmarks. 

606.  Destroying   or   Injuring   jails. 

607.  Destroying  or  injuring  bridges,   dams,  etc. 

608.  Burning    or   injuring    rafts.    Setting    adrift   vessels. 

609.  Removing  buoys  and  beacons. 

610.  Masking  or  removing  signals,  or  exhibiting  false  lights. 

611.  Obstructing    navigable    streams. 

612.  Depositing   sawdust,    etc.,    in   Humboldt  Bay. 

613.  Throwing   overboard    ballast,   or   obstructing   navigation. 

614.  Mooring  vessels  to  buoys. 

615.  Injuries   to    signals,    etc.,    in   United    States    survey. 

616.  Destroying  or  tearing  down  notices,  etc. 

617.  Injuring  or  destroying  written  instrument. 

618.  Opening  or  publishing  sealed   letters. 

619.  Disclosing  contents  of   telegraphic   message. 

620.  Altering  telegraphic  messages. 

621.  Opening  telegrams. 

622.  Injuring   works  of  art,   or  improvements. 

623.  Mutilation    of   books,    etc.,    in    public    libraries. 
623^.  Detaining   books,    etc.,    from    public    libraries. 

624.  Breaking   or  obstructing   water-pipes,   etc. 

625.  Drawing  water  from  works  after  they  have  been  closed. 

Malicious  mischief  in  general,  defined. 

594.  Every  person  who  maliciously  injures  or  destroys  any 
real  or  personal  property  not  his  own,  in  cases  otherwise  than 
such  as  are  specified  in  this  code,  is  guilty  of  a  misdemeanor. 

Specifications  in  following  sections  not  restrictive  of  last  section. 

595.  The  specification  of  the  acts  enumerated  in  the  following^ 
sections  of  this  chapter  is  not  intended  to  restrict  or 
qualify  the  interpretation  of  the  preceding  section. 

Poisoning  cattle. 

596.  Every  person  who  wilfully  administers  any  poison  to  an 
animal,  the  property  of  another,  or  maliciously  exposes  any  poi- 
sonous substance,  with  the  intent  that  the  same  shall  be  taken 
or  swallowed  by  any  such  animal,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  three  years,  or  in  the 
county  jail  not  exceeding  one  year,  and  a  fin©  not  exceeding  five 
hundred  dollars. 

81    Cal.     212. 

Killing,   maiming,  or  torturing   animals. 

597.  Every  person  who  maliciously  kills,  maims,  or  wounds 
an  animal,  the  property  of  another,  or  who  maliciously  and 
cruelly  beats,  tortures,  or  injures  any  animal,  whether  belonging 
to  himself  or  another,  is  guilty  of  a  misdemeanor. 

Killing,  etc.,  birds  in  cemeteries. 

598.  Every  person  who,  within  any  public  cemetery  or  bury- 
ing-ground,  kills,  wounds,   or  traps   any  bird,   or  destroys  any 


CRIMES   --38 


600-602  PENAL  CODE.  594 

bird's  nest  other  than  swallows'  nests,  or  removes  any  eggs  or 
young  birds  from  any  nest,  is  guilty  of  a  misdemeanor. 

BurniYi'g  building  not  subject  to  arson. 

600.  Every  person  who  wilfully  and  maliciously  burns  any 
bridge  exceeding  in  value  fifty  dollars,  or  any  structure,  snow- 
shed,  or  vessel,  or  boat,  not  the  subject  of  arson,  or  any  tent, 
or  any  stack  of  hay  or  grain  or  straw  of  any  kind,  or  any  pile  of 
baled  hay  or  straw,  or  any  pile  of  potatoes,  or  beans,  or  vege- 
tables, or  produce,  or  fruit  of  any  kind,  whether  sacked,  boxed, 
crated,  or  not,  or  any  growing  or  standing  grain,  grass,  or  tree, 
or  any  fence,  or  any  railroad  car,  lumber,  cord-wood,  railroad 
ties,  telegraph  poles,  or  shakes,  or  any  tule  land  or  peat  ground 
of  the  value  of  twenty-five  dollars  or  over,  not  the  property  of 
such  person,  is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  one  year,  nor  more  than  ten  years.  [Stats.  1901, 
p.  268.] 

Using  gunpowder,  etc.,  in  destroying  or  injuring   any  buildings. 

601.  Every  person  who  maliciously,  by  the  explosion  of  gun- 
powder or  other  explosive  substance,  destroys,  throws  down,  or 
Injures  the  whole  or  any  part  of  any  building,  by  means  of 
which  the  life  or  safety  of  a  human  being  is  endangered,  is  guilty 
of  felony. 

Malicious  injuries  to  freehold. 

602.  Every  person  who  wilfully  commits  any  trespass  by 
either: 

1.  Cutting  down,  destroying,  or  injuring  any  kind  of  wood 
or  timber  standing  or  growing  upon  the  lands  of  another;  or 

2.  Carrying  away  any  kind  of  wood  or  timber  lying  on  such 
lands;    or 

3.  Maliciously  injuring  or  severing  from  the  freehold  of  an- 
other anything  attached  thereto,  or  the  produce  thereof;  or 

4.  Digging,  taking,  or  carrying  away  from  any  lot  situated 
within  the  limits  of  any  incorporated  city,  without  the  license 
of  the  owner  or  legal  occupant  thereof,  any  earth,  soil,  or  stone; 
or 

5.  Digging,  taking,  or  carrying  away  from  any  land  in  any 
of  the  cities  of  the  state,  laid  down  on  the  map  or  plan  of  such 
city,  or  otherwise  recognized  or  established  as  a  street,  alley, 
avenue,  or  park,  without  the  license  of  the  proper  authorities, 
any  earth,  soil,  or  stone;  or 

6.  Putting  up,  affixing,  fastening,  printing,  or  painting  upon 
any  property  belonging  to  the  state,  or  to  any  city,  county, 
town,  or  village,  or  dedicated  to  the  public,  or  upon  any  prop- 
erty of  any  person,  without  license  from  the  owner,  any  notice, 
advertisement,  or  designation  of,  or  any  name  for  any  commod- 
ity, whether  for  sale  or  otherwise,  or  any  picture,  sign,  or  device 
intended  to  call  attention  thereto;   or 

7.  Entering  upon  any  lands  owned  by  any  other  person  or 
persons  whereon  oysters  or  other  shellfish  are  planted  or  grow- 
ing; or  injuring,  gathering,  or  carrying  away  any  oysters  or 
other  shell-fish  planted,  growing,  or  being  on  any  such  lands, 
whether  covered  by  water  or  not,  without  the  license  of  the 
owner  or   legal   occupant  thereof;    or   destroying  or   removing. 


595  MALICIOUS  MISCHIEF.  603-607 

or  causing  to  be  removed  or  destroyed,  any  stakes,  marks, 
fences,  or  signs  intended  to  designate  the  boundaries  and  limits 
of  any  such  lands,  is  guilty  of  a  misdemeanor.  [Amendment  ap- 
proved March  30,  1878;  Amendments  1877-8,  118.  In  effect 
March  30,  1878.1 

112   Cal.    204. 

Limitation   upon  the  operations  of  the  preceding  section. 

603.  The  following  acts  do  not  constitute  a  public  offense, 
within  the  meaning  of  the  preceding  section: 

1.  Gathering  pitch  from  trees  on  the  public  lands  of  the  state 
or  United  States,  unless  the  bark  from  such  trees  is  removed  for 
more  than  one-eighth  of  their  circumference,  or  cut  made  more 
than  three  inches  in  depth  into  the  wood  thereof; 

2.  Cutting  trees  upon  the  public  lands  of  the  state  or  United 
States,  ih  good  faith,  for  the  purpose  of  manufacturing  the  same 
into  lumber  or  firewood,  or .  preparing  such  lands  for  agricul- 
tural or  mining  purposes; 

— Unless  such  acts  are  committed  upon  swamp  and  overflowed, 
tide,  salt  marsh,  or  school  lands  belonging  to  the  state,  or  within 
the  limits  of  the  lands  granted  by  the  United  States  to  this 
state  by  act  of  Congress  of  June  thirteenth,  eighteen  hundred 
and  sixty-four,  relating  to  the  Yosemite  Valley  and  Mariposa 
Big  Tree  Grove. 

Injuries  to  standing  crops. 

604.  Every  person  who  maliciously  injures  or  destroys  any 
standing  crops,  grain,  cultivated  fruits  or  vegetables,  the  prop- 
erty of  another,  in  any  case  for  which  a  punishment  is  not 
otherwise  prescribed  by  this  code,  is  guilty  of  a  misdemeanor. 

Removing,  defacing  or  altering  landmarks. 

605.  Every  person  who  either: 

1.  Maliciously  removes  any  monument  erected  for  the  pur- 
pose of  designating  any  point  in  the  boundary  of  any  lot  or 
tract  of  land,  or  a  place  where  a  subaqueous  telegraph  cable 
lies;    or, 

2.  Maliciously  defaces  or  alters  the  marks  upon  any  such 
monument;    or, 

3.  Maliciously  cuts  down  or  removes  any  tree  upon  which 
any  such  marks  have  been  made  for  such  purpose,  with  intent 
to  destroy  such  marks; 

— Is  guilty  of  a  misdemeanor. 

Destroying  or  injuring  jails. 

606.  Every  person  who  wilfully  and  intentionally  breaks 
down,  pulls  down,  or  otherwise  destroys  or  injures  any  public 
jail  or  other  place  of  confinement,  is  punishable  by  fine  tfOt 
exceeding  ten  thousand  dollars,  and  by  imprisonment  in  the 
state  prison  not  exceeding  five  years. 

68    Cal.    435. 

Destroying  or  injuring  bridges,  dams,  etc. 

607.  Every  person  who  wilfully  and  maliciously  cuts,  breaks, 
injures,  or  destroys  any  bridge,  dam.  canal,  flume,  aqueduct, 
levee,  embankment,  reservoir,  or  other  structure  erected  to  cre- 
ate hydraulic  power,  or  to  drain  or  reclaim  any  swamp  and 
overflowed  tide  or  marsh  land,  or  to  store  or  conduct  water  for 
mining,  manufacturing,  reclamation,  or  agricultural  purposes, 
or  for  the  supply  of  the  inhabitants  of  any  city  or  town,  or  any 


608-612  PENAL  CODE.  596 

embankment  necessary  to  the  same,  or  either  of  them,  or  wil- 
fully or  maliciously  makes,  or  causes  to  be  made,  any  aperture 
In  such  dam,  canal,  flume,  aqueduct,  reservoir,  embankment, 
levee,  or  structure,  with  intent  to  injure  or  destroy  the  same; 
or  draws  up,  cuts,  or  injures  any  piles  fixed  in  the  ground  for 
the  purpose  of  securing  any  sea-bank,  or  sea-walls,  or  any  dock, 
quay,  or  jetty,  lock,  or  sea-wall;  or  who,  between  the  first  day 
of  October  and  the  fifteenth  day  of  April  of  each  year,  plows  up 
or  loosens  the  soil  in  the  bed  or  on  the  sides  of  any  natural 
watercourse  or  channel,  without  removing  such  soil  within 
twenty-four  hours  from  such  watercourse  or  channel;  or  who, 
between  the  fifteenth  day  of  April  and  the  first  day  of  October 
of  each  year,  shall  plow  up  or  loosen  the  soil  in  the  bed  or  on 
the  sides  of  such  natural  watercourse  or  channel,  and  shall  not 
remove  therefrom  the  soil  so  plowed  up  or  loosened  before  the 
first  day  of  October  next  thereafter,  is  guilty  of  a  misdemeanor, 
and  upon  conviction,  punishable  by  a  fine  not  less  than  one  hun- 
dred dollars  and  not  exceeding  one  thousand  dollars,  or  by 
imprisonment  in  the  county  jail  not  exceeding  two  years,  or  by 
both;  provided,  that  nothing  in  this  section  shall  be  construed 
so  as  to  in  any  manner  prohibit  any  person  from  digging  or 
removing  soil  from  any  such  watercourse  or  channel,  for  the 
purpose  of  mining.  [Amendment  approved  April  12,  1880; 
Amendments  1880,  36.     In  effect  April  12,  1880.] 

57    Cal.    105. 

Burning  or  injuring  rafts.     Setting  adrift  vessels. 

608.  Every  person  who  wilfully  and  maliciously  burns, 
injures,  or  destroys  any  pile  or  raft  of  wood,  plank,  boards,  or 
other  lumber,  or  any  part  thereof,  or  cuts  loose  or  sets  adrift 
any  such  raft  or  part  thereof,  or  cuts,  breaks,  injures,  sinks,  or 
sets  adrift  any  vessel,  the  property  of  another,  is  punishable  by 
fine  not  exceeding  five  hundred  dollars,  or  by  imprisonment  in 
the  county  jail  not  exceeding  six  months. 

Removing  buoys  and  beacons. 

609.  Every  person  who  wilfully  removes  any  buoy  or  beacon, 
placed  in  any  waters  within  this  state  by  lawful  authority,  is 
guilty  of  a  misdemeanor. 

IVIaskirig  or  removing  signals,  or  exhibiting  false  lights. 

610.  Every  person  who  unlawfully  masks,  alters,  or  removes 
any  light  or  signal,  or  wilfully  exhibits  any  light  or  signal,  with 
intent  to  bring  any  vessel  into  danger,  is  punishable  by  impris- 
onment in  the  state  prison  not  less  than  three  nor  more  than  ten 
years. 

Obstructing  navigable  streams. 

611.  Every  person  who  unlawfully  obstructs  the  navigation 
of  any  navigable  stream,  is  guilty  of  a  misdemeanor. 

Depositing  sawdust,  etc.,  in   Humboldt  Bay. 

612.  Every  person  who  throws,  deposits,  or  permits  another 
in  his  employ  \o  throw  or  deposit,  any  sawdust,  slabs,  or  refuse 
lumber,  in  any  placei  where  it  may  be  carried  or  fall  into  the 
waters  of  Humboldt  Bay,  without  first  having  constructed  piers, 
bulkheads,  dams,  or  other  contrivances,  approved  by  the  board 
of  supervisors  of  Humboldt  Coimty,  to  prevent  the  same  from 
escaping  into  the  channels  of  such  bay,  is  guilty  of  a  misde- 
meanor. 


697  MALICIOUS  MISCHIEF.  613-619 

Throwing  overboard  ballast,  or  obstructing  navigation. 

613.  Every  person  who,  within  the  anchorage  of  any  port, 
harbor,  or  cove  of  this  state,  into  which  vessels  may  enter  for 
the  purpose  of  receiving  or  discharging  cargo,  throws  over- 
board from  any  vessel  the  ballast,  or  any  part  thereof,  or  who 
otherwise  places  or  causes  to  be  placed  in  such  port,  harbor, 
or  cove,  any  obstructions  to  the  navigation  thereof,  is  guilty  of 
a  misdemeanor. 

Mooring  vessels  to  buoys. 

614.  Every  person  mooring  any  vessel  to  or  hanging  on  with 
a  vessel  to  any  buoy  or  beacon,  placed  by  competent  authority 
in  any  navigable  waters  of  this  state,  is  guilty,  of  a  misde- 
me?.nor. 

Injuries  to  signals,  etc.,  in   United  States  survey. 

615.  Every  person  who  wilfully  injures,  defaces,  or  removes 
any  signal,  monument,  building,  or  appurtenance  thereto,  placed, 
erected,  or  used  by  persons  engaged  in  the  United  States  Coast 
Survey,  is  guilty  of  a  misdemeanor. 

Destroying  or  tearing  down  notices,  etc. 

616.  Every  person  who  intentionally  defaceb,  obliterates, 
tears  down,  or  destroys  any  copy  or  transcript,  or  extract  from 
or  of  any  law  of  the  United  States  or  of  this  state,  or  any  proc- 
lamation, advertisement,  or  notification  set  up  at  any  place  In 
this  state,  by  auth|3rity  of  any  law  of  the  United  States  or  of 
this  state,  or  by  order  of  any  court,  before  the  expiration  of 
the  time  for  which  the  same  was  to  remain  set  up,  is  'Punish- 
able by  fine  not  less  than  twenty  nor  more  than  one  hundred 
dollars,  or  by  imprisonment  in  the  county  jail  not  more  than 
one  month. 

Injuring  or  destroying  written  instrument. 

617.  Every  person  who  maliciously  mutilates,  tears,  defaces, 
obliterates,  or  destroys  any  written  instrument,  the  property  of 
another,  the  false  making  of  which  would  be  forgery,  is  punish- 
able by  imprisonment  in  the  state  prison  for  not  less  than  one 
nor  more  than  five  years. 

Opening  or  publishing  sealed   letters. 

618.  Every  person  who  wilfully  opens  or  reads,  or  causes 
to  be  read,  any  sealed  letter  not  addressed  to  himself,  without 
being  authorized  so  to  do,  either  by  the  writer  of  such  letter  or 
by  the  person  to  whom  it  is  addressed,  and  every  person  who, 
without  the  like  authority,  publishes  any  of  the  contents  of  such 
letter,  knowing  the  same  to  have  been  unlawfully  opened.  Is 
guilty   of  a  misdemeanor. 

Disclosing  contents  of  telegraphic  message. 

619.  Every  person  who  wilfully  discloses  the  contents  of  a 
telegraphic  message,  or  any  part  thereof,  addressed  to  another 
person,  without  the  permission  of  such  person,  unless  directed 
so  to  do  by  the  lawful  order  of  a  court,  is  punishable  by  impris- 
onment in  the  state  prison  not  exceeding  five  years,  or  in  the 
county  jail  not  exceeding  one  year,  or  by  fine  not  exceeding 
five  thousand  dollars,  or  by  both  fine  and  imprisonment. 
[Amendment  approved  April  15,  1880;  Amendments  1880,  38. 
In  effect  in  sixty  days.] 


620-625  PENAL  CODE.  59« 

Altering  telegraphic  messages. 

620.  EJvery  person  who  wilfully  alters  the  purport,  effect,  or 
meaning  of  a  telegraphic  message,  to  the  injury  of  another,  is 
punishable  as  provided  in  the  preceding  section. 

Opening  telegrams. 

621.  Every  person  not  connected  with  any  telegraph  office 
who,  without  the  authority  or  consent  of  the  person  to  whom 
the  same  may  be  directed,  wilfully  opens  any  sealed  envelope 
Inclosing  a  telegraphic  message  and  addressed  to  any  other  per- 
son, with  the  purpose  of  learning  the  contents  of  such  message, 
or  who  fraudulently  represents  any  other  person  and  thereby 
procures  to  be  delivered  to  himself  any  telegraphic  message 
addressed  to  such  other  person,  with  the  intent  to  use,  destroy, 
or  detain  the  same  from  the  person  or  persons  entitled  to  receive 
such  message,  is  punishable  as  provided  in  section  619. 

Injuring  works  of  art,  or  Improvements. 

622.  Every  person,  not  the  owner  thereof,  who  wilfully  injures, 
disfigures,  or  destroys  any  monument,  work  of  art,  or  useful  or 
ornaaental  improvement  within  the  limits  of  any  village,  town, 
or  city,  or  any  shade  tree  or  ornamental  plant  growing  therein, 
whether  situated  upon  private  ground  or  on  any  street,  sidie- 
walk,  or  public  park  or  place,  is  guilty  of  a  misdemeanor. 

Mutilation  of  books,  etc.,  in   public   libraries. 

623.  Every  person  who  maliciously  cuts,  tears,  defaces, 
breaks,  or  injures  any  book,  map,  chart,  picture,  engraving, 
statue,  coin,  model,  apparatus,  or  other  work  of  literature,  art, 
mechanics,  or  object  of  curiosity,  deposited  in  any  public 
library,  gallery,  museum,  collection,  fair,  or  exhibition,  is  guilty 
of  a  misdemeanor.     [Stats.  1901,  p.  99.] 

Detaining  books,  etc.,  from  public  libraries. 

623%.  Whoever  wilfully  detains  any  book,  newspaper,  mag- 
azine, pamphlet,  manuscript,  or  other  property  belonging  to  any 
public  or  incorporated  library,  reading-room,  museum  or  other 
educational  institution,  for  thirty  days  after  notice  in  writing 
to  return  the  same,  given  after  the  expiration  of  the  time  which 
by  the  rules  of  such  Institution  such  article  or  other  property 
may  be  kept,  is  guilty  of  a  misdemeanor  and  shall  be  pun- 
ished accordingly.  [In  effect  sixty  days  from  March  14,  1899. 
Stats.  1899,  p.  97.] 

Breaking  or  obstructing  water  pipes,  etc. 

624.  Every  person  who  wilfully  breaks,  digs  up,  obstructs,  or 
injures  any  pipe  or  main  for  conducting  gas  or  water,  or  any 
works  erected  for  supplying  buildings  with  gas  or  water,  or  any 
appurtenances  or  appendages  therewith  connected,  is  guilty  of 
a  misdemeanor. 

Drawing  water  from   works  after  they   have  been   closed. 

625.  Every  person  who,  with  intent  to  defraud  or  injure, 
opens  or  causes  to  be  opened,  or  draws  water  from  any  stop- 
cock or  faucet  by  which  the  flow  of  water  is  controlled,  after 
having  been  notified  that  the  same  has  been  closed  or  shut  for 
specific  cause,  by  order  of  competent  authority,  is  guilty  of  a 
misdemeanor. 


699  VIOLATION  OF  GAMB  LAWS.  626-6266 

TITLE  XV. 

MISCELLANEOUS  CRIMES. 

Chapter     I.     Violation  of  the  laws  for  the  preservation  of  game 
and  fish,  626-37. 
II.     Of  other  and  miscellaneous  offenses,  638-5^5. 

CHAPTER  I. 

VIOLATION  OF  THE  LAWS  FOR    THE  PRESERVATION  OF" 
GAME  AND  FISH. 

Sec.    626.    Destruction   of  grouse,    (lucks,    etc.,    when   prohibited. 
626a.  Doves. 
626b.  Nests,   or  eggs. 
626c.  Pheasants,   etc. 
626(1.  Limit  of  day's  liag. 
626(\   Female  deer,   etc. 
626f.    Male    deer,    close    season. 
626g.   Squirrels. 

626h.   Sale   or   possession   of   deer   pelts. 
626i.    Limit  of  deer  that   may   l)e   killed    in   one  season. 
626j.    Running   or   trailing   deer   during   close   season. 
626k.  Sale  of  certain  gamei  i)rohlbited. 
6261.    Live    birds   and   animals   for   certain    purposes. 
626m.  Night-time  hunting  is  prohil)ited. 

627.  Trespass  a   misdemeanor. 
627a.  Transportation    companies. 

627b.  Shipments   of   game   must   Ite    labeled,   etc. 

628.  Preservation   of  fish,     ("lose  seasons. 

629.  Having   screens  in   tishing. 

631.    Netting   or   trapping,    etc  ,    prohibited. 

631a.  Penalty   for  violations  of   provisions  of  this   act. 

631b.  Disposition  (if  money   from   fines. 

6.S2.    Trout,    protection    of. 

634.  Taking,  sale,  or  possession  of  salmon,  when  prohibited. 

635.  Fse    of    explosives    and    pollution    of    waters. 

636.  Setting   net,  trap,   etc.,   for  fish. 
6.36a.  Nets,    seines,    etc.,    prohibited. 

637.  Ushways  and   ladders,   penalties  for  not  keeping. 
637a.  Meadow-larks,    protection   of. 

Destruction  of  grouse,  ducks,  etc.,  when  prohibited. 

626.  Every  person  who,  between  the  first  day  of  February 
and  the  first  day  of  October  of  any  year,  hunts,  pursues,  takes, 
kills,  or  destroys,  or  has  in  his  possession,  whether  taken  or 
killed  in  the  state  of  California,  or  shipped  into  the  state  from 
any  other  state,  territory,  or  foreign  country,  any  quail,  part- 
ridge, grouse,  or  sage  hen,  or  any  kind  of  wild  duck,  or  any 
rail,  or  any  curlew,  ibis,  or  plover,  is  guilty  of  a  misdemeanor.. 
[Stats.  1901,  p.  819.] 

103   Cal.    479; 

Doves. 

626a.  Every  person  who,  between  the  first  day  of  February 
and  the  first  day  of  August  of  the  same  year,  hunts,  pursues, 
takes,  kills,  or  destroys,  or  has  in  his  possession  any  dove,  is 
guilty  of  a  misdemeanor.     [Stats.  1901,  p.  819.] 

Nests,    or    eggs. 

626b.  Every  person  who  destroys  or  has  in  his  possession 
the  nest  or  eggs  of  anj^  of  the  birds  mentioned  in  this  chapter,., 
is  guilty  of  a  misdemeanor.     [Stats.   1901,   p.   819.] 


626c-626k  penal  code.  600 

Pheasants,  etc. 

626c.  Every  person  who  takes,  kills,  or  destroys,  or  has  in 
his  possession  any  Mongolian  or  English  pheasant,  or  any  bob- 
white,  or  eastern  or  Chinese  quail,  or  English  partridge,  is  guilty 
of  a  misdemeanor.     [Stats.  1901,  p.  819.] 

Limit  of  day's  bag. 

626d.  Every  person  who,  during  any  one  calendar  day,  takes, 
kills,  or  destroys,  or  has  in  his  possession,  more  than  twenty- 
five  quail,  partridge,  .snipe,  curlew,  or  ibis,  or  more  than  fifty 
doves,  or  more  than  fifty  ducks,  or  more  than  twenty  rails,  is 
guilty  of  a  misdemeanor.     [Stats.  1901,  p.  820.] 

Female  deer,  etc. 

626e.  Every  person  who  pursues,  takes,  kills,  or  destroys,  or 
has  in  his  possession,  any  female  deer  or  spotted  fawn,  or  any 
antelope,  elk,  or  mountain  sheep,  is  guilty  of  a  misdemeanor. 
{Stats.  1901,  p.  820.] 

Male  deer,  close  season. 

626f.  Every  person  who,  between  the  first  day  of  October  of 
any  year  and  the  first  day  of  August  of  the  following  year, 
hunts,  pursues,  takes,  kills,  or  destroys,  or  has  in  his  posses- 
sion, whether  taken  or  killed  in  the  state  of  California,  or 
shipped  into  the  state  from  any  other  state,  territory,  or  for- 
eign country,  any  male  deer  or  any  deer  meat,  is  guilty  of  a 
misdemeanor.     [Stats.  1901,  p.  820.] 

Squirrels, 

626g.  Every  person  who  hunts,  takes,  kills,  or  destroys,  or 
has  in  his  possession,  between  the  first  day  of  February  and 
the  first  day  of  August  of  any  year,  any  species  of  tree  squir- 
rel, is  guilty  of  a  misdemeanor.     [Stats.  1901,  p.  820.] 

Sale  or  possession    of  deer   pelts. 

626hj  Every  person  who  buys,  sells,  offers  or  exposes  for 
sale,  transports  or  carries,  or  has  in  his  possession,  the  skin, 
pelt  or  hide  of  any  female  deer,  or  spotted  fawn,  or  any  deer 
hide  or  pelt  from  which  the  evidence  of  sex  has  been  removed, 
is  guilty  of  a  misdmeanor.     [Stats.  1901,  p.  820.] 

Limit  of  deer  that  may  be  killed  in  one  season. 

6261.  Every  person  who  takes,  kills,  or  destroys,  or  has  in 
his  possession,  whether  taken  or  killed  in  the  state  of  Califor- 
nia or  shipped  into  the  state  from  any  other  state,  territory, 
or  foreign  country,  more  than  three  deer,  during  any  one  open 
season,  is  guilty  of  a  misdemeanor.     [Stats.   1901,  p.  820.] 

Running  or  trailing   deer  during  close  season. 

626j.  Every  person  who,  controlling  or  having  in  his  pos- 
session any  deerhounds,  foxhounds,  greyhounds,  or  any  other 
kind  of  dog,  wilfully  suffers,  permits,  or  allows  any  of  said 
dogs  to  run,  track,  or  trail  any  deer  auring  the  time  when  it 
is  unlawful  to  kill  the  same,  is  guilty  of  a  misdemeanor.  [Stats. 
1901,  p.   820.] 

Sale   of   certain    game   prohibited. 

626k.  Every  person  who  buys,  sells,  offers,  or  exposes  for 
sale,   barter    or   trade,   any   quail,    partridge,    pheasant,   grouse, 


601  VIOLATION  OF  GAME  LAWS.  626^6276 

sage  hen,  ibis,  or  plover,  or  any  deer  meat,  whether  taken  or 
killed  in  the  state  of  California,  or  shipped  into  the  state  from 
any  other  stats,  territory,  or  foreign  country,  is  guilty  of  a 
misdemeanor.     IStats.   1901,   p.  820.] 

Live  birds  and  animals  for  certain  purposes. 

6261.  Nothing  in  this  act  shall  be  held  to  prohibit  the  pos- 
session for  scientific  purposes,  or  the  taking  alive  for  the  pur- 
pose of  propagation,  any  of  the  animals  or  birds  mentioned  in 
this  section;  provided,  permission  to  take  and  possess  said 
birds  or  animals  for  said  purposes  shall  have  been  first  obtained 
in  writing  from  the  game  commissioner  or  the  state  board  of 
fish  commissioners,  and  said  permission  shall  accompany  the 
shipment  of  said  birds  or  animals,  and  shall  exempt  them  from 
seizure  while  passing  through  any  part  of  the  state.  [Stats. 
1901.   p.   821.] 

Nighttime  hunting  Is  prohibited. 

626m.  Every  person  who,  at  any  time,  between  one-half  hour 
after  sundown  and  one-half  hour  before  sunrise  of  the  follow- 
ing day,  hunts,  pursues,  takes,  kills,  or  destroys,  any  of  the 
birds  mentioned  in  this  chapter,  is  guilty  of  a  misdemeanor. 
[Stats.  1901,  p.  821.] 

Trespass    a    misdemeanor. 

627.  Every  person  who  upon  any  enclosed  or  cultivated 
grounds,  which  is  private  property,  and  where  signs  are  dis- 
played not  less  than  three  to  the  mile,  along  all  exterior  bound- 
aries thereof,  forbidding  such  shooting  or  hunting,  hunts,  pur- 
sues, takes,  kills,  or  destroys,  any  quail,  partridge,  pheasant, 
grouse,  dove,  wild  duck,  snipe,  curlew,  ibis,  or  plover,  or  any 
deer,  without  permission  first  obtained  from  the  owner  or  per- 
son in  possession  of  such  ground,  or  who  maliciously  tears 
down,  mutilates,  or  destroys  any  sign,  signboard,  or  other  notice 
forbidding  shooting  on  private  property,  is  guilty  of  a  misde- 
meanor.    [Stats.  1901,  p.  821.] 

119    Cal.    57S. 
Transportation   companies. 

627a.  Every  railroad  company,  express  company,  transporta- 
tion company,  or  other  common  carrier,  its  officers,  agents  and 
servants,  and  every  other  person  who  transports,  carries  or 
takes  out  of  this  state,  or  who  receives  for  the  purpose  of 
transporting  from  the  state,  any  deer,  deer  skin,  buck,  doe  or 
fawn,  or  any  quail,  partridge,  pheasant,  grouse,  prairie  chicken, 
dove,  wild  pigeon,  or  any  wild  duck,  rail,  snipe,  ibis,  curlew,  or 
plover,  except  for  the  purposes  of  propagation,  or  who  trans- 
ports, carries  or  takes  from  the  state,  or  receives  for  the  pur- 
pose of  transportation  from  the  state,  any  such  animal  or  bird, 
or  any  part  of  tlie  carcass  thereof,  is  guilty  of  a  misdemeanor. 
The  right  to  transport  for  the  purposes  of  propagation,  or  for 
scientific  purposes,  must  first  be  obtained  by  permit  in  writing 
if'rom  the  g?,me  commissioner  or  the  state  board  of  fish  com- 
missioners.    [Stats.   1901,  p.   821.] 

Shipments  of  game  must  be   labeled,  etc. 

627b.  Every  railroad  company,  steamship  company,  express 
company,  transportation  company,  transfer  company,  and  every 
other   person,   who   ships,   or   receives   for   shipment    or   trans- 


628-629  PENAL  CODE.  602 

portation,  from  any  one  person,  during  any  one  day,  more  than 
twenty-five  quail,  partridge,  grouse  or  sage  hen,  snipe,  curlew, 
or  ibis,  or  more  than  fifty  doves,  or  more  than  twenty  rail,  or 
more  than  fifty  wild  ducks,  or  who  transports  any  of  said  birds 
or  any  deer,  in  any  quantity,  unless  such  birds  or  deer  are  at 
all  times  in  open  view,  and  labeled  with  the  name  and  residence 
of  the  person  by  whom  they  are  shipped,  is  guilty  of  a  misde- 
meanor.    [Stats.  1901,  p.  821.] 

Preservation    of  fish.     Close   seasons. 

628.  Every  person  who,  between  the  thirty-first  day  of  May 
and  the  first  day  of  July,  buys,  sells,  takes,  catches  oi'  has  in 
his  possession,  any  striped  bass,  or  who,  between  the  first  day 
of  January  and  the  first  day  of  July,  buys,  sells,  takes,  catches  or 
has  in  his  possession,  any  black  bass,  or,  who,  between  the 
first  day  of  April  and  the  fifteenth  day  of  August,  buys,  sells, 
takes,  catches  or  has  in  his  possession,  any  lobster  or  craw- 
fish, or,  who,  between  the  first  day  of  May  and  the  first  day  of 
September,  buys,  sells,  takes,  catches,  kihs  or  has  in  his  pos- 
session, any  shrimp,  or,  who,  at  any  time,  buys,  sells,  takes, 
catches,  kills  or  has  in  his  possession,  any  striped  bass  of  less 
than  one  pound  in  weight,  or  any  lobster  or  crawfish  of  less 
than  nine  and  one-half  inches  in  length,  measured  from  one 
extremity  to  the  other  exclusive  of  legs,  claws  or  feeiers,  or 
any  sturgeon  or  any  egg-bearing  female  lobster,  or  any  female 
crab,  or  any  abalone  shells,  or  abalone  the  shell  of  which  shall 
measure  less  than  fifteen  inches  around  the  outer  edge  of  the 
shell,  or,  who,  by  seine  or  other  means,  catches  the  young  fish 
of  any  species  and  does  not  immediately  return  the  same  to 
the  water  alive,  or  who  buys,  sells,  or  offers  for  sale  or  has  in 
his  possession,  any  such  fish,  whether  fresh  or  dried,  or  who 
catches,  takes,  kills  or  carries  away  any  fish  from  any  pond  or 
reservoir  belonging  to,  or  controlled  by,  the  board  of  fish  com- 
missioners, or  any  person,  or  corporation,  without  the  consent 
of  the  owners  thereof,  which  pond  or  reservoir  has  been  stocked 
with  fish,  or  who,  except  with  hook  and  line,  takes,  catches 
or  kills  any  black  bass  whatsoever,  or  any  kind  of  fish,  from 
any  river  or  stream  upon  which  the  state  or  United  States 
fish  hatchery  is  maintained,  is  guilty  of  a  misdemeanor,  and 
punishable  by  fine  not  less  than  twenty  dollars  nor  more  than 
five  hundred  dollars,  or  by  imprisonment  in  the  county  jail  not 
less  than  ten  nor  more  than  one "  hundred  and  fifty  days,  or 
by  both  such  fine  and  imprisonment.  All  fines  collected  for 
any  violation  of  any  of  the  provisions  of  this  section  must  be 
paid  into  the  "fish  commission  fund."  Nothing  in  this  section 
prohibits  the  United  States  fish  commission  and  the  fish  com- 
mission of  this  state  from'  taking  at  all  times  such  fish  as  they 
deem  necessary  for  the  purpose  of  artificial  hatching.  It  is  no 
defense  in  a  prosecution  for  a  violation  of  any  of  the  provisions 
of  this  section  that  the  fish  were  caught  or  taken  outside,  or 
within,  this  state.     [Stats.  1901,  p.  54.  [ 

Having   screens  in  fishing. 

629.  Any  person  or  persons,  corporation  or  corporations, 
owning,  in  whole  or  in  part,  or  leasing,  operating,  or  having  in 
charge,  any  millrace.  irrigating-ditch,  or  canal,  taking  or  receiv- 
ing its  waters  from  any  river,  creek,  stream,  or  lake    in  which 


603  VIOLATION  OF  GAME  LAWS.  631-631 

fish  have  been  placed  or  may  exist,  shall  put,  or  cause  to 
be  placed  and  maintain  over  the  inlet  of  said  ditch,  canal,  or 
millrace,  a  wire  screen  of  such  construction  and  fineness, 
strength  and  quality,  as  shall  prevent  any  such  fish  from  enter- 
ing such  ditch,  canal,  or  millrace,  when  required  to  do  so  by 
the  fish  commissioners.  Any  person  or  corporation  violating 
the  provisions  of  this  section,  or  who  shall  neglect  or  refuse  to 
put  up  or  maintain  such  screen,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  punished  by  a 
fine  of  not  less  than  ten  dollars  nor  more  than  one  hundred 
dollars,  and  may  be  imprisoned  at  the  rate  of  two  dollars  per 
day  until  such  fine  be  paid  or  satisfied;  provided,  that  the  con- 
tinuance from  day  to  day  of  the  neglect  or  refusal,  after  noti- 
fication in  writing  by  the  fish  commissioners,  shall  constitute 
a  separate  offense.  [New  section  approved  March  27,  1895; 
Stats.  1895,  p.  259.     In  effect  immediately.] 

Netting  or  trapping,  etc.,  prohibited. 

631.  Every  person  who  takes,  kills,  or  destroys,  by  the  use 
of  any  net,  pound,  cage,  trap,  set  line  or  wire,  any  quail,  part- 
ridge, grouse,  wild  duck,  curlew,  or  ibis,  or  who  transports, 
buys,  sells  or  gives  away,  offers  or  exposes  for  sale,  or  has  in 
his  possession,  any  of  the  said  birds  that  have  been  taken, 
killed,  or  captured  by  the  use  of  any  net,  pound,  cage,  trap,  set 
line  or  wire,  whether  taken  in  the  state  of  California,  or  shipped 
into  the  state  from  any  other  state,  territory,  or  foreign  coun- 
try, is  guilty  of  a  misdemeanor;  provided,  that  the  same  may 
be  taken  for  purposes  of  propagation  or  for  scientific  purposes, 
written  permission  having  first  been  obtained  from  the  game 
commissioner  or  the  state  board  of  fish  commissioners.  [Stats. 
1901,  p.  822.] 

Penalty   for  violations  of   provisions   of  this   act. 

631a.  Every  person  found  guilty  of  a  violation  of  any  of  the 
provisions  of  section  six  hundred  and  twenty-six,  six  hundred 
and  twenty-six  a,  six  hundred  and  twenty-six  b,  six  hundred  and 
twenty-six  c,  six  hundred  and  twenty-six  d,  six  hundred  and 
twenty-six  e,  six  hundred  and  twenty-six  f,  six  hundred  and 
twenty-six  g,  six  hundred  and  twenty-six  h,  six  hundred  and 
twenty-six  i,  six  hundred  and  twenty-six  j,  six  hundred  and 
twenty-six  k,  six  hundred  and  twenty-six  m,  sections  six  hun- 
dred and  twenty-seven,  six  hundred  and  twenty-seven  a,  six 
hundred  and  twenty-seven  b.  and  section  six  hundred  and  thirty- 
one,  must  be  fined  in  a  sum  not  less  than  twenty-five  dollars, 
nor  more  than  five  hundred  dollars,  or  imprisonment  in  the 
county  jail,  of  the  county  in  which  the  conviction  shall  be  had, 
not  less  than  twenty-five  days  nor  more  than  one  hundred  and 
fifty  days,  or  by  both  such  fine  and  imprisonment.  [Stats.  1901. 
p.  822.] 

Disposition    of   money   from    fines. 

631b.  All  fines  paid  or  collected  for  the  violation  of  any  of 
the  provisions  of  sections  six  hundred  and  twenty-six,  six  hun- 
dred and  twenty-six  a,  six  hundred  and  twenty-six  b,  six  hun- 
dred and  twenty-six  c,  six  hundred  and  twenty-six  d,  six  hun- 
dred and  twenty-six  e,  six  hundred  and  twenty-six  f,  six  hundred 
and   twenty-six   g,  six  hundred   and   twenty-six   h,    six   hundred 


•632-634  PENAL  CODE.  604 

and  twenty-six  i,  six  hundred  and  twenty-six  j,  six  hundred  and 
twenty-six  k,  six  hundred  and  twenty-six  m,  six  hundred  and 
twenty-seven,  six  hundred  and  twenty-seven  a,  six  hundred  and 
twenty-seven  b,  and  six  hundred  and  thirty-one,  of  this  chapter, 
must  be  paid  by  the  court  in  which  the  conviction  shall  be  had 
into  the  state  treasury  to  the  credit  of  the  game  preservation 
fund,  which  fund  is  hereby  created,  and  the  moneys  in  said 
fund  shall  be  applied  to  the  payment  of  claims  approved  by  the 
game  commissioner  or  the  state  board  of  fish  commissioners 
for  the  expense  of  protecting,  restoring  and  introducing  game 
Into  the  state  and  to  the  payment  of  the  expenses  incurred 
in  the  prosecution  of  offenders  against  the  provisions  of  the 
above  named  sections.     [Stats.  1901,  p.  822.] 

Trout;    protection   of. 

632.  Every  person  who,  between  the  first  day  of  November 
in  any  year  and  the  first  day  of  April  of  the  year  following, 
buys,  sells,  takes,  catches,  kills  or  has  in  his  possession,  any 
variety  of  trout,  except  steelhead  trout  (Salmo  gairdneri),  or 
who,  between  the  first  day  of  February  and  the  first  day  of 
April,  buys,  sells,  takes,  catches  or  has  in  his  possession,  any 
steelhead  trout  (Salmo  gairdneri),  or  who,  between  the  first 
day  of  November  and  the  first  day  of  April  of  the  year  follow- 
ing, takes,  kills,  or  catches,  any  steelhead  trout  above  tide 
■water,  or  who,  at  any  time,  buys,  sells,  or  offers  for  sale,  any 
trout  of  less  than  one-half  pound  weight,  or  takes  or  catches 
any  trout  except  with  hook  and  line,  is  guilty  of  a  misdemeanor; 
provided,  however,  that  steelhead  trout  (Salmo  gairdneri)  may 
be  taken  in  tide  water  between  the  first  day  of  April  and  the 
first  day  of  February  of  the  following  year,  with  lawful  nets, 
and  a  lawful  net  is  a  net  that  when  placed  in  the  water  is 
unsecured  and  free  to  drift  with  the  current,  or  tide,  and  the 
meshes  of  which  are,  when  drawn  closely  together  and  meas- 
ured inside  the  knot  not  less  than  seven  and  one-half  inches  in 
length.  Every  person  found  guilty  of  any  violation  of  any  of 
the  provisions  of  this  section  must  be  fined  in  a  sum  not  less 
than  twenty  dollars  or  be  imprisoned  in  tbe  county  jail  in  the 
county,  not  less  than  ten  days,  or  be  punished  by  both  such 
fine  and  imprisonment,  and  all  fines  collected  for  any  violation 
of  any  of  the  provisions  of  this  section  must  be  paid  into  the 
"fish  commission  fund."  Nothing  in  this  section  prohibits  the 
United  States  fish  commission  and  the  fish  commission  of  this 
state  from  taking,  at  all  times,  such  trout  as  they  deem  neces- 
sary for  the  purpose  of  propagation.     [Stats.   1901,   p.  55. J 

Taking,  sale,  or  possession  of  salmon,  when  prohibited. 

634.  Every  person  who,  between  the  tenth  day  of  September 
and  the  sixteenth  day  of  October  of  each  year,  takes  or  catches, 
buys,  sells,  offers  or  exposes  for  sale,  or  has  in  his  possession 
any  fresh  salmon;  every  person  who,  between  the  fifteenth  day 
of  October  and  the  fifteenth  day  of  November  of  each  year, 
takes  or  catches  any  salmon  above  tide  water;  every  person 
who  shall  set  or  draw,  or  assist  in  setting  or  drawing,  any  net 
or  reine  for  the  purpose  of  taking  or  catching  salmon,  shad,  striped 
basn,  or  sturgeon,  in  any  o^  the  waters  of  the  state,  at  any  time 
betv/een  sunrise  of  each  Saturday  and  sunset  of  the  followmg 
Sunday;  every  person  who,'  for  the  purpose  of  catching  salmon, 


605  VIOLATION  OF  GAME  LAWS.  635-636- 

shad,  striped  bass,  or  sturgeon,  in  any  of  the  waters  of  the- 
state.  fish  with  or  use  any  seine  or  net,  drag-net,  or  paranzella, 
the  meshes  of  which  are,  when  drawn  closely  together  and 
measured  inside  the  knot,  less  than  seven  and  one-half  inches 
in  length,  is  guilty  of  a  misdemeanor,  and  is  punishable  by  a 
fine  not  less  than  two  hundred  dollars,  or  by  imprisonment  in 
the  county  jail  in  which  the  conviction  shall  be  had,  not  less 
than  one  hundred  and  fifty  days,  or  by  both  such  fine'  and  impris- 
onment, and  all  the  fines  imposed  and  collected  for  any  viola- 
tions of  the  provisions  of  this  section  shall  be  paid  into  the 
"fish  commission  fund."  In  the  construction  and  meaning  of 
this  section,  the  limits  of  tide  water  in  the  Sacramento  River 
shall  be  deemed  to  extend  from  its  mouth  to  the  city  of  Sacra- 
mento; in  the  San  Joaquin  River,  from  its  mouth  to  the  South- 
ern Pacific  Railroad  bridge  near  Lathrop,  in  San  Joaquin 
County;  in  Eel  River,  in  Humboldt  County,  from  its  mouth  to 
East  Ferry,  above  the  town  of  Fortuna;  in  the  Klamath  River, 
to  a  point  on  the  river  north  of  the  residence  of  James  McGar- 
vey;  in  Smith  River,  in  Del  Norte  County,  from  its  mouth  to 
Higgins  Ferry.  Nothing  in  this  section  shall  prohibit  the  United 
States  fish  commission  and  the  fish  commission  of  this  state, 
from  taking,  at  all  times,  such  fish  as  they  deem  necessary  for 
the  purposes  of  artificial  hatching.  It  shall  be  no  defense  in  a 
prosecution  for  the  violation  of  any  of  the  provisions  of  this 
section  that  the  fish  were  caught  or  taken  outside  or  \vithin  this 
state.     [Amendment  approved  February  25,  1897,  p.  20.] 

73   Cal.   258;   107  Cal.   2S1. 

Use  of  explosives  and  pollution  of  waters. 

635.  Every  person  who  places  or  causes  to  be  placed  in  any 
of  the  waters  of  this  state,  dynamite,  gunpowder,  or  other 
explosive  compound,  for  the  purpose  of  killing  or  taking  fish, 
or  who  takes,  procures,  kills  or  destroys  any  fish  of  any  kind 
by  means  of  explosives;  or  who  places  or  allows  to  pass,  or 
who  places  where  it  can  pass,  into  any  of  the  waters  of  this 
state,  any  lime,  gas,  tar,  cocculus  indicus,  slag,  sawdust,  shav- 
ings, slabs,  edgings,  mill  or  factory  refuse,  or  any  substance 
deleterious  to  fish,  is  guiltj^  of  a  misdemeanor,  and  is  punish- 
able by  a  fine  of  not  less  than  two  hundred  and  fifty  dollars,  or 
by  imprisonment  in  the  county  jail  in  the  county,  not  less  than 
one  hundred  and  fifty  days,  or  by  both  such  fine  and  imprison- 
ment.    [Stats.  1901,  p.  55.] 

107    Cal.    281. 

Setting  net,  trap,  etc.,  for  fish. 

636.  Every  person  who  shall  cast,  extend,  or  set  any  seine 
or  net  of  any  kind,  for  the  catching  of  any  fish  in  any  river, 
stream,  or  slough  of  this  state,  which  shall  extend  more  than 
one-third  across  the  width  of  said  river,  stream,  or  slough,  at 
the  time  and  place  of  such  fishing;  every  person  who  shall  cast, 
extend,  set,  use,  or  continue,  or  who  shall  assist  in  casting, 
extending,  using,  or  continuing  "Chinese  shrimp  or  bag  net,"  or 
a  net  of  similar  character,  for  the  catching  of  fish  in  the  waters 
of  this  state;  every  person  who  shall  cast,  extend,  set,  use,  or 
continue,  or  have  in  his  possession,  or  who  shall  assist  in  cast- 
ing, extending,  or  using  "Chinese  sturgeon  lines,"  or  lines  of  a 
similar  character;  every  person  who  shall  set,  use,  or  continue, 
or  shall  assist  in  setting,  using,  or  continuing  any  pound,  weir. 


636a-637  penal  code.  606 

set-net,  trap,  or  any  other  fixed  or  permanent  contrivance  for 
catching  fish  in  the  waters  of  this  state — and  every  net  shall 
be  considered  a  set-net  that  is  secured  in  any  way  and  not  free 
to  drift  with  the  current  or  tide — is  guilty  of  a  misdemeanor, 
and  is  punishable  by  a  fine  of  not  less  than  one  hundred  dol- 
lars, or  by  imprisonment  in  the  county  jail  in  the  county  in 
which  the  conviction  shall  be  had,  not  less  than  fifty  days,  or 
by  both  such  fine  and  imprisonment;  and  all  the  fines  imposed 
and  collected  for  any  violation  of  any  of  the  provisions  of  this 
section  shall  be  paid  into  the  "fish  commissioners'  fund," 
[Amendment  approved  March  31,  1897;  Stats.  1897,  p.  349.  In 
effect  immediately.] 

57   Cal.    231;    73   Cal     258;    107   Cal.    281;    114   Cal. 
371;    124    Cal.    151. 

Nets,   seines,   etc.,   prohibited. 

636a.  Any  net,  seine,  drag-net,  paranzella,  or  set-net  used 
for  taking  or  catching  fish,  which  shall  be  used  or  maintained 
in  any  of  the  waters  of  this  state  in  violation  of  any  existing 
or  hereafter  enacted  statutes  or  laws  of  this  state  for  the  pro- 
tection of  fish,  is  hereby  declared  to  be  a  public  nuisance,  and 
it  is  the  duty  of  every  peace  officer  to  seize  and  keep  the  same 
and  report  such  seizure  to  the  board  of  fish  commissioners  of 
the  state.  Thereupon  said  board  must  commence  proceedings 
in  the  Superior  Court  of  the  county  or  city  and  county  in  which 
the  same  shall  be  seized,  by  filing  a  petition  in  said  court,  ask- 
ing for  a  judgment  forfeiting  such  net,  seine,  drag-net,  paran- 
zella, or  set-net  so  seized,  and  ordering  the  destruction  thereof. 
Upon  the  filing  of  such  petition,  it  is  the  duty  of  the  clerk  of 
said  court  to  fix  a  time  for  the  hearing  thereof  and  to  cause 
notices  to  be  posted  for  the  space  of  fourteen  days  in  at  least 
three  public  places  in  the  town,  city,  or  city  and  county,  where 
the  court  is  held,  setting  forth  the  substance  of  such  petition 
and  the  time  and  place  fixed  for  its  hearing,  and  if  at  the  time 
fixed  for  such  hearing,  no  person  appears  and  claims  such  net, 
seine,  drag-net,  paranzella,  or  set-net,  the  court  must  proceed 
to  hear  and  determine  said  proceeding  according  to  law,  and 
upon  proof  that  the  said  net,  seine,  drag-net,  paranzella,  or  set- 
net  was  used  in  violation  of  law,  must  order  the  same  to  be 
forfeited  and  destroyed.     [Stats.  1901,  p.  56.1 

Fishways  and  ladders,  penalties  for  not  keeping. 

637.  Every  owner  of  a  dam  or  other  obstruction  in  any  run- 
ning water  of  this  state,  who,  after  being  ordered  and  notified 
by  the  fish  commissioners  to  construct  a  fish  ladder  on  or  to 
repair  a  fish  ladder  already  constructed  on  such  dam  or  other 
obstruction  according  to  the  plans  of  the  fish  commissioners, 
fails  to  construct  or  repair  such  fish  ladder,  within  thirty  days 
after  such  notice,  is  guilty  of  a  misdemeanor,  and  upon  convic- 
tion shall  pay  a  fine  of  not  less  than  fifty  dollars  nor  more  than 
two  hundred,  or  bv  imprisonment  in  the  county  jail 
in  which  such  conviction  is  had  of  not  less  than  twenty-five 
days  nor  more  than  one  hundred  days. 

2.  One-half  of  all  moneys  collected  as  fines  for  violations  of 
the  provisions  of  this  act  shall  be  paid  to  the  informer,  one- 
fourth  to  the  district  attorney  of  the  county  where  the  con- 
vicion  is  secured,  and  the  remaining  one-fourth  shall  be  paid 
to  the  state  board  of  fish  commissioners  of  this  state,  to  be  by 


607  MISCELLANEOUS  OFFENSES.  637a-638 

them  used  for  the  purposes  and  in  conformity  of  "an  act  to 
authorize  the  state  board  of  fish  commissioners  to  import  game 
birds  into  the  state  for  propagation,"  approved  March  sixteenth, 
eighteen  hundred  and  eighty-nine.  [Amendment  approved 
March  11,  1891;    Stats.  1891.  p.  93.] 

62    Cal.     3S. 

Meadow-larks,   protection    of. 

637a.  Every  person  who  in  the  state  of  California  shall  at 
any  time  hunt,  shoot,  shoot  at,  pursue,  take,  kill,  or  destroy, 
buy,  sell,  give  away,  or  have  in  his  possession,  except  upon  a 
written  permit  from  the  board  of  fish  commissioners  of  the 
state  of  California  for  the  purpose  of  propagation  or  for  edu- 
cational or  scientific  purposes,  any  meadow-lark  or  any  part 
of  the  skin,  skins  or  plumage  thereof,  or  who  shall  rob  the  nest 
or  take  or  destroy  the  eggs  of  any  meadow-lark,  shall  be  guilty 
of  a  misdemeanor;  provided,  that  nothing  in  this  section  shall 
prohibit  the  killing  of  a  meadow-lark  by  the  owner  or  tenant 
of  any  premises  where  such  bird  is  found  destroying  berries, 
fruits,  or  crops,  growing  on  such  premises.    [Stats.  1901,  p.  573.] 


CHAPTER  II. 
OF  OTHER   MISCELLANEOUS    OFFENSES. 

Sec. .  <v!8.  Neglect    or    postponement    of   telegraphic    messages. 

639.  Emplojree  using  information  from   messages. 

640.  Clandestinely  learning  the  contents  of  a  telegram. 

641.  Drilling  telegraph  operator. 

642.  Collecting  tolls,  etc  ,  at  San  Francisco,  without  authority. 

643.  Violations  of  police  regulations  of  San   Francisco  harbor. 

644.  Enticing  seamen  to  desert. 
64.5.  Harboring  deserting  seamen. 

646.  Aiding  apprentices  to  run  away  or  harboring  them. 

647.  Vagrants. 

•        648.  Issuing  or  circulating  paper  money. 

649.  OfHcers  of  fire  department  issuing  false  certificates. 

650.  Sending  letters  threatening  to  expose  another. 

651.  Requiring   apprentices   to   work   more   than   eight  hours. 

652.  National  Guard  failure  to  attend  parade,  obey  orders,  etc. 
6.53.  Members  of  National   Guard,   insubordination  of. 

6.5.3}.  Appraisers  >accepting    fees    not    allowed. 
654.    Abuse  of  school  teachers. 

Neglect  or  postponement  of  telegraphic   messages. 

638.  Every  agent,  operator,  or  employee  of  any  telegraph 
oflice.  who  wilfully  refuses  or  neglects  to  send  any  message 
received  at  such  office  for  transmission,  or  wilfully  postpones 
the  same  out  of  its  order,  or  wilfully  refuses  or  neglects  to 
deliver  any  message  received  by  telegraph,  is  guilty  of  a  mis- 
demeanor. Nothing  herein  contained  shall  be  construed  to 
require  any  message  to  be  received,  transmitted,  or  delivered, 
unless  the  charges  thereon  have  been  paid  or  tendered,  nor  to 
require  the  sending,  receiving,  or  delivery  of  any  message  coun- 
seling, aiding,  abetting,  or  encouraging  treason  against  the  gov- 
ernment of  the  United  States  or  of  this  state,  or  other  resist- 
ance to  the  lawful  authority,  or  any  message  calculated  to 
further  any  fraudulent  plan  or  purpose,  or  to  instigate  or  encour- 
age the  pernetration  of  any  unlawful  act,  or  to  facilitate  the 
escape  of  anv  criminal  or  person  accused  of  crime. 


639-644  PENAL  CODE.  608 

Employee  using  information  from  messages. 

639.  Every  agent,  operator,  or  employee  of  any  telegraph 
office  who  in  j;ny  way  uses  or  appropriates  any  information 
derived  by  him  from  any  private  message  passing  through  his 
hands,  and  addressed  to  any  other  person,  or  in  any  other  man- 
ner acquired  by  him  by  reason  of  his  trust  as  such  agent, 
operator,  or  employee,  or  trades  or  speculates  upon  any  such 
information  so  obtained,  or  in  any  manner  turns,  or  attempts 
to  turn,  the  same  to  his  own  account,  profit,  or  advantage,  is 
punishable  by  imprisonment  in  the  state  prison  not  exceeding 
five  years,  or  by  imprisonment  in  the  county  jail  not  exceeding 
one  year,  or  by  fine  not  exceeding  five  thousand  dollars,  or  by 
both   such   fine   and   imprisonment. 

Clandestinely   learning  the  contents  of  a  telegram. 

640.  Every  person  who,  by  means  of  any  machine,  instru- 
ment, or  contrivance,  or  in  any  other  manner,  wilfully  and 
fraudulently  reads,  or  attempts  to  read,  anj'  message,  or  to  learn 
the  contents  thereof,  whilst  the  same  is  being  sent  over  any 
telegraph  line,  or  wilfully  and  fraudulently,  or  clandestinely, 
learns  or  attempts  to  learn  the  contents  or  meaning  of  any 
message,  while  the  same  is  in  any  telegraph  office,  or  is  being 
received  thereat  or  sent  therefrom,  or  who  uses  or  attempts  to 
use,  or  communicates  to  others,  any  information  so  obtained, 
is  punishable  as  provided  in  section  639. 

Bribing  telegraph  operator. 

641.  Every  person  who,  by  the  payment  or  promise  of  any 
bribe,  inducement,  or  reward,  procures  or  attempts  to  procure 
any  telegraph  agent^,  operator,  or  employee  to  disclose  any 
private  message  or  the  contents,  purport,  substance,  or  mean- 
ing thereof,  or  offers  to  any  such  agent,  operator,  or  employee 
any  bribe,  compensation,  or  reward  for  the  disclosure  of  any 
private  information  received  by  him  by  reason  of  his  trust  as 
such  agent,  operator,  or  employee,  or  uses  or  attempts  to  use 
any  such  information  so  obtained,  is  punishable  as  provided  in 
section  639. 

Collecting  tolls,  etc.,  at  San   Francisco,  without  authority. 

642.  Every  person  who  collects  any  toll,  wharfage,  or  dock- 
age, or  lands,  ships,  or  removes  any  property  upon  or  from  any 
portion  of  the  water  front  of  San  Francisco,  or  from  or  upon  any 
of  the  wharves,  piers,  or  landings  under  the  control  of  the 
board  of  state  harbor  commissioners,  "without  being  by  such 
board  authorized  so  to  do,  is  guilty  of  a  misdemeanor. 

71    Cal.    7. 

Violations  of  police   regulations  of  San   Francisco  harbor. 

643.  Every  person  who  violates  any  of  the  provisions  of  the 
laws  of  this  state  relating  to  sailor  boarding-houses  and  ship- 
ping-offices in  San  Francisco,  or  who  receives  any  gratuity  or 
reward  other  than  as  therein  provided,  for  the  performance  of 
any  services  under  a  license  issued  pursuant  to  the  provisions 
of  such  laws,  is  guilty  of  a  misdemeanor. 

71    Cal.    7. 

Enticing  seamen  to  desert. 

644.  Every  person  who  entices  seamen  to  desert  from  any 
vessel  lying  in  the  waters  of  this  state,  and  on  board  of  which 
they  have  shipped  for  a  term  or  voyage  unexpired  at  the  time  of 
such  enticement,  is  guilty  of  a  misdemeanor. 


609  MISCELLANEOUS  OFFENSES^  645-649 

Harboring  deserting  seamen. 

645.  Every  person  who  harbors  or  secretes  any  seaman^ 
knowing  him  to  be  shipped,  and  with  a  view  to  persuade  or 
enable  him  to  desert,  is  guilty  of  a  misdemeanor. 

Aiding  apprentices  to  run  away  or  harboring  them. 

646.  Every  person  who  wilfully  and  knowingly  aids,  assists, 
or  encourages  to  run  away,  or  who  harbors  or  conceals  any 
person  bound  or  held  to  service  or  labor,  is  guilty  of  a  misde- 
meanor. 

Vagrants. 

647.  Every  person  (except  a  California  Indian)  without  visible 
means  of  living,  who  has  the  physical  ability  to  work,  and  who 
does  not  seek  employment,  nor  labor  when  employment  is  offered 
him;  or. 

2.  Every  healthy  beggar  who  solicits  alms  as  a  business;   or, 

3.  Every  person  who  roams  about  from  place  to  place  with- 
out any  lawful  business;   or, 

4.  Every  person  known  to  be  a  pickpocket,  thief,  burglar,  or 
confidence  operator,  either  by  his  own  confession,  or  by  his  hav- 
ing been  convicted  of  either  of  said  offenses,  and  having  no  vis- 
ible or  lawful  means  of  support,  when  found  loitering  around 
any  steamboat  landing,  railroad  depot,  banking  institution, 
broker's  office,  place  of  public  amusement,  auction  room,  store, 
shop,  or  crowded  thoroughfare,  car,  or  omnibus,  or  at  any  public 
gathering  or  assembly;  or, 

5.  Every  idle  or  dissolute  person,  or  associate  of  known 
thieves,  who  wanders  about  the  streets  at  late  or  unusual  hours 
of  the  night;  or, 

6.  Every  person  who  lodges  in  any  barn,  shed,  shop,  out- 
house, vessel,  or  place  other  than  such  as  is  kept  for  lodging 
purposes,  without  the  permission  of  the  owner  or  party  entitled 
to  the  possession  thereof;    or, 

7.  Every  lewd  or  dissolute  person  who  lives  in  and  about 
houses  of  ill-fame;   or, 

8.  Every  person  who  acts  as  a  runner  or  capper  for  attor- 
neys in  and  about  police  courts  or  city  prisons,  in  incorporated 
cities,  or  cities  and  counties;   or, 

9.  Every  common  prostitute  and  common  drunkard,  is  a  vag- 
rant, and  is  punishable  by  imprisonment  in  the  county  jail  not 
exceeding  six  months.  [Amendment  approved  March  19,  1891; 
Stats.  1891,  p.  130;   in  effect  immediately.] 

72  Cal.  385;  82  Cal.   614;  88  Cal.   102:   88  Cal.  113; 
108    Cal.    57. 

Issuing  or  circulating  paper  money. 

648.  Every  person  who  makes,  issues,  or  puts  in  circulation 
any  bill,  check,  ticket,  certificate,  promissory  note,  or  the  paper 
of  any  bank,  to  circulate  as  money,  except  as  authorized  by  the 
laws  of  the  United  States,  for  the  first  offense,  is  guilty  of  a 
misdeameanor,  and  for  each  and  every  subsequent  offense,  is 
guilty  of  felony. 

Officers  of  fire  department  issuing  false  certificates. 

649.  Every  officer  of  a  fire  department  who  wilfully  issues  or 
causes  to  be  issued  any  certificate  of  exemption  to  a  person 
not  entitled  thereto,  is  guilty  of  a  misdemeanor. 


650-654  PENAL  CODE.  610 

Sending   letters  threatening  to  expose  another. 

650.  Every  person  who  knowingly  and  wilfully  sends  or 
delivers  to  another  any  letter  or  writing,  whether  subscribed 
or  not,  threatening  to  accuse  him  or  another  of  a  crime,  or  to 
-expose  or  publish  any  of  his  failings  or  infirmities,  is  guilty  of 
a  misdemeanor. 

-Requiring  apprentices  to  work  more  than  eight  hours. 

651.  Every  person  having  a  minor  child  under  his  control, 
either  as  a  ward  or  an  apprentice,  who,  except  in  vinicultural 
or  horticultural  pursuits,  or  in  domestic  or  household  occupa- 
tions, requires  such  child  to  labor  more  than  eight  hours  in  any 
one  day,  is  guilty  of  a  misdemeanor. 

National  Guard  failure  to  attend  parade,  obey  orders,  etc. 

652.  EVery  commissioned  officer  of  the  national  guard  who 
wilfully  fails  to  attend  any  parade  or  encampment,  and  every 
member  of  the  national  guard  who  neglects  or  refuses  to  obey 
the  lawful  command  of  his  superior  on  any  day  of  parade  or 
encampment,  or  to  perform  such  military  duty  as  may  be  law- 
fully required  of  him,  is  punishable  by  a  fine  of  not  less  than 
five  nor  more  than  one  hundred  dollars. 

Members  of  National  Guard,  insubordination  of. 

653.  Every  member  of  the  national  guard  who,  when  duly 
notified,  fails  to  appear  at  a  parade,  or  who  disobeys  any  law- 
ful order,  or  who  uses  disrespectful  language  towards  his 
superior,  or  who  commits  any  act  of  insubordination,  is  guilty 
of  a  misdemeanor. 

Appraisers  accepting  fees  not  allowed. 

6531^.  Any  appraiser,  appointed  by  virtue  of  section  one 
thousand  four  hundred  and  forty-four  of  the  Civil  Code  of  Pro- 
cedure, who  shall  accept  any  fees,  reward,  or  compensation 
other  than  that  provided  for  by  law,  from  any  executor,  admin- 
istrator, trustee,  legatee,  next  of  kin  or  heir  of  any  decedent,  or 
fiom  any  other  person,  is  guilty  of  a  misdemeanor.  [In  effect 
March  1,  1899.     Stats.  1899,  p.  35.] 

Abuse  of  school  teachers. 

654.  Every  parent,  guardian,  or  other  person  who  upbraids, 
insults,  or  abuses  any  teacher  of  the  public  schools,  in  the 
presence  or  hearing  of  a  pupil  thereof,  is  guilty  of  a  misde- 
meanor, [New  section  approved  March  30,  1874;  Amendments 
1873-4,  p.  435.     In  effect  July  1,  1874.] 


611  GENERAL  PROVISIONS.  654-658 

TITLE  XVI. 
GENERAL  PROVISIONS. 

Sec.    654.  Acts  made  punishable  by  different  provisions  of  this  code. 

655.  Acts  punishable  under  foreign  law. 

656.  Foreign  conviction  or  acquittal. 

657.  Contempt,  how  punishable. 

658.  Mitigation   of   punishment   In   certain   cases. 

659.  Aiding   in    misdemeanor. 

660.  Sending    letters,    when   deemed  complete. 

661.  Removal    from    office   for   neglect    of   official   duty. 

662.  Omission  to  perform  duty,  when  punishable. 

663.  Attempts  to  commit  crimes,   when   punishable. 

664.  Attempts  to  commit  crimes,  how  punishable. 

665.  Restrictions  upon   thei  preceding  sections. 

666.  Second    offense,    how    punished    after    conviction    of    former 

offense. 

667.  Second    offenses,    how   punished    after   conviction    of   attempt 

to  commit  a  state  prison  offense. 

668.  Foreign  conviction  for  former  offense. 

660.    Second   term    of    Imprisonment,    when    to   commence. 

670.  When  term  of  imprisonment  commences,  etc. 

671.  Imprisonment   for   life. 

672.  Fine  may  be  added  to  Imprisonment. 

673.  Civil   rights   of  convict   suspended. 

674.  Civil   death. 

675.  Limitations  on  two  preceding  sections. 

676.  Person  of  convict  protected. 

677.  Forfeitures. 

678.  Valuation  In  gold  coin. 

679.  Coercion  or  compulsion  of  persons  seeking  employment. 
67f>a.  Limiting  sale  of   convict-made   goods. 

6S0.    Payment  of  wages  to  employees  in  a  saloon. 

Acts  made  punishable  by  different  provisions  of  this  code. 

654.  An  act  or  omission  wliich  is  made  punishable  in  differ- 
ent ways  by  different  provisions  of  this  code  may  be  punished 
under  either  of  such  provisions,  but  in  no  case  can  it  be  pun- 
ished under  more  than  one;  an  acquittal  or  conviction  and  sen- 
tence under  either  one  bars  a  prosecution  for  the  same  act  or 
omission  under  any  other.  In  the  cases  specified  in  sections 
648,  667,  and  668,  the  punishments  therein  prescribed 
must  be  substituted  for  those  prescribed  for  a  first  offense,  if 
the  previous  conviction  is  charged  in  the  indictment  and  found 
by  the  jury. 

49    Cal.    395.  *  ,    ■     • 

Acts  punishable  under  foreign   law. 

655.  An  act  or  omission  declared  punishable  by  this  code 
is  not  less  so  because  it  is  also  punishable  under  the  laws  of 
another  state,  government,  or  country,  unless  the  contrary  is 
expressly  declared. 

Foreign  conviction  or    acquittal. 

656.  Whenever  on  the  trial  of  an  accused  person  it  appears 
that  upon  a  criminal  prosecution  under  the  lawrs  of  another 
state,  government,  or  country,  founded  upon  the  act  or  omission 
in  respect  to  which  he  is  on  trial,  he  has  been  acquitted  or  con- 
victed, it  is  a  sufficient  defense. 

Contempt,  how  punishable. 

657.  A  criminal  act  is  not  the  less  punishable  as  a  crime 
because  it  ia  also  declared  to  be  punishable  as  a  contempt. 

Mitigation  of  punishment  in  certain  cases. 

658.  When  it  appears,  at  the  time  of  passing  sentence  upon 
a  person  convicted  upon  indictment,  that  such  person  has  already 


659-664  PENAL  CODE.  612 

paid  a  fine  or  suffered  an  imprisonment  for  the  act  Of  which  he 
stands  convicted,  under  an  order  adjudging  it  a  contempt,  the 
court  authorized  to  pass  sentence  may  mitigate  the  punishment 
to  be  imposed,  in  its  discretion. 

Aiding  in  misdemeanor. 

659.  Whenever  an  act  is  declared  a  misdemeanor,  and  no 
punishment  for  counseling  or  aiding  in  the  commission  of  such 
act  is  expressly  prescribed  by  law,  every  person  who  counsels 
or  aids  another  in  the  commission  of  such  act  is  guilty  of  a 
misdemeanor. 

105  Cal.   644. 

Sending  letters,  when  deemed  complete. 

660.  In  the  various  cases  in  which  the  sending  of  a  letter 
is  made  criminal  by  this  code,  the  offense  Is  deemed  complete 
from  the  time  when  such  letter  is  deposited  in  any  post-office 
or  any  other  place,  or  delivered  to  any  person,  with  intent  that 
it  shall  be  forwarded. 

Removal  from  office  for  neglect  of  official  duty. 

661.  In  addition  to  the  penalty  affixed  by  express  terms,  to 
every  neglect  or  violation  of  official  duty  on  the  part  of  public 
officers,  state,  county,  city,  or  township,  where  it  is  not  so 
expressly  provided,  they  may,  in  the  discretion  of  the  court,  be 
removed  from  office. 

Omission  to  perform  duty,  when  punishable. 

662.  No  person  is  punishable  for  an  omission  to  perform 
an  act,  where  such  act  has  been  performed  by  another  person 
acting  in  his  behalf  and  competent  by  law  to  perform  it. 

Attempts  to  commit  crimes,  when   punishable. 

663.  Any  person  may  be  convicted  of  an  attempt  to  commit 
a  crime,  although  it  appears  on  the  trial  that  the  crime  intended 
oi-  attempted  was  perpetrated  by  such  person  in  pursuance  of 
such  attempt,  unless  the  court,  in  its  discretion,  discharges  the 
jury  and  directs  such  person  to  be  tried  for  such  crime. 

Attempts  to  commit  crimes,  how  punishable. 

664.  Every  person  who  attempts  to  commit  any  crime,  but 
fails,  or  is  prevented  or  intercepted  in  the  perpetration  thereof, 
is  punishable,  where  no  provision  is  made  by  law  for  the  pun- 
ishment of  such  attempts,  as  follows: 

1.  If  the  offense  so  attempted  is  punishable  by  imprisonment 
in  the  state  prison  for  five  years,  or  more,  or  by  imprisonment 
in  a  county  jail,  the  person  guilty  of  such  attempt  is  punish- 
able by  imprisonment  in  the  state  prison,  or  in  a  county  jail, 
as  the  case  may  be,  for  a  term  not  exceeding  one-half  the  long- 
est term  of  imprisonment  prescribed  upon  a  conviction  of  the 
offense  so  attempted. 

2.  If  the  offense  so  attempted  is  punishable  by  imprisonment 
in  the  state  prison  for  any  term  less  than  five  years,  the  person 
guilty  of  such  attempt  is  punishable  by  imprisonment  in  the 
county  jail  for  not  more  than  one  year. 

3.  If  the  offense  so  attempted  is  punishable  by  a  fine,  the 
offender  convicted  of  such  attempt  is  punishable  by  a  fine  not 
exceeding  one-half  the  largest  fine  which  may  be  imposed  upon 
a  conviction  of  the  offense  so  attempted. 

4.  If  the  offense  so  attempted  is  punishable  by  imprisonment 


613  GENERAL  PROVISIONS.  665-667 

and  by  a  fine,  the  offender  convicted  of  such  attempt  may  be 
punished  by  both  imprisonment  and  fine,  not  exceeding  one-half 
the  longest  term  of  imprisonment  and  one-half  the  largest  fine 
which  may  be  imposed  upon  a  conviction  for  the  offense  so 
attempted. 

49  Cal.  393:  59  Cal.  423;  60  Cal.  72;  67  Cal.  104; 
75    Cal.    571:    98    Cal.    129. 

Restrictions  upon  tlie  preceding  sections. 

665.  The  last  two  sections  do  not  protect  a  person  who,  in 
attempting  unsuccessfully  to  commit  a  crime,  accomplishes  the 
commission  of  another  and  different  crime,  whether  greater  or 
less  in  guilt,  from  suffering  the  punishment  prescribe^  by  law 
for  the  crime  committed. 

Second  offense,  how  punisiied  after  conviction  of  former  offense. 

666.  Every  person  who,  having  been  convicted  of  any 
offense  punishable  by  imprisonment  in  the  state  prison,  commits 
any  crime  after  such  conviction,  is  punishable  therefor,  as  fol- 
lows: 

1.  If  the  offense  of  which  such  person  is  subsequently  con- 
victed is  such  that,  upon  a  first  conviction,  an  offender  would  be 
punishable  by  imprisonment  in  the  state  prison  for  any  term 
exceeding  five  years,  such  person  is  punishable  by  imprison- 
ment in  the  state  prison  not  less  than  ten  years. 

2.  If  the  subsequent  offense  is  such  that,  upon  a  first  con- 
viction, the  offender  would  be  punishable  by  imprisonment  in 
the  state  prison  for  five  years,  or  any  less  term,  then  the  per- 
son convicted  of  such  subsequent  offense  is  punishable  by 
imprisonment   in   the   state   prison   not   exceeding  ten   years. 

3.  If  the  subsequent  conviction  is  for  petit  larceny,  or  any 
attempt  to  commit  an  offense  which,  if  committed,  would  be 
punishable  by  imprisonment  in  the  state  prison  not  exceeding 
five  years,  then  the  person  convicted  of  such  subsequent  offense 
is  punishable  by  imprisonment  in  the  state  prison  not  exceed- 
ing five  years. 

■^7  Cal.  559:  S4  Cal.  338;  65  Cal.  299;  87  Cal. 
i!86;  88  Cal.  120;  88  Cal.  174;  110  Cal.  43;  118 
Cal.    389;    120    Cal.    272. 

Second   offenses,   how  punished   after  conviction   of  attempt  to 
commit  a  state  prison  offense. 

667.  Every  person  who,  having  been  convicted  of  petit  lar- 
ceny, or  of  an  attempt  to  commit  an  offense  which,  if  perpe- 
trated, would  be  punishable  by  imprisonment  in  the  state  prison, 
commits  any  crime  after  such  conviction,  is  punishable  as  fol- 
lows: 

1.  If  the  subsequent  offense  is  such  that,  upon  a  first  con- 
viction, the  offender  would  be  punishable  by  imprisonment  in 
the  state  prison  for  life,  at  the  discretion  of  the  court,  such 
person  is  punishable  by  imprisonment  in  such  prison  during 
life. 

2.  If  the  subsequent  offense  is  such  that,  upon  a  first  con- 
viction, the  offender  would  be  punishable  by  imprisonment  in 
the  state  prison  for  any  term  less  than  for  life,  such  person  Is 
punishable  by  imprisonment  in  such  prison  for  the  longest  term 
prescribed,  upon  a  conviction  for  such  first  offense. 

3.  If  the  subsequent  conviction  is  for  petit  larceny,  or  for  an 
attempt  to  commit  an  offense  which,  if  perpetrated,  would  be 
punishable  by  imprisonment  in  the  state  prison,  then  such  per- 


668-673  PENAL  CODE.  614 

I 

son  Is  punishable  by  imprisonment  In  such  prison  not  exceed- 
ing five  years. 

47  Cal.  115;  49  Cal.  396;  61  Cal.   137;  61  Cal.  436'. 
73    Cal.    442;    110   Cal.    43;    109   Cal.    297.    * 

Foreign  conviction  for  former  offense. 

668.  Every  person  who  has  been  convicted  in  "any  other  state, 
government,  or  country,  of  an  offense  which,  if  committed 
within  this  state,  would  be  punishable  by  the  laws  of  this  state 
by  imprisonment  in  the  state  prison,  is  punishable  for  any  sub- 
sequent crime  committed  within  this  state  in  the  manner  pre- 
scribed in  the  last  two  sections,  and  to  the  same  extent  as  if 
such  first  conviction  had  taken  place  in  a  court  of  this  state. 

61   Cal.    436;    73   Cal.    443. 

Second  term  of  imprisonment,  wiien  to  commence. 

669.  When  any  person  is  convicted  of  two  or  more  crimes 
before  sentence  has  been  pronounced  upon  him  for  either,  the 
imprisonment  to  which  he  is  sentenced  upon  the  second  or 
other  subsequent  conviction  must  commence  at  the  termination 
of  the  first  term  of  imprisonment  to  which  he  shall  be  adjudged, 
or  at  the  termination  of  the  second  or  other  subsequent  term  of 
imprisonment,  as  the  case  may  be. 

61   Cal.    439;    76   Cal.    519;    86   Cal.    429;    132    Cal      348.  J    j 

When  term  of  imprisonment  commences,  etc. 

670.  The  term  of  imprisonment  fixed  by  the  judgment  in  a 
criminal  action  commences  to  run  only, upon  the  actual  delivery 
of  the  defendant  at  the  place  of  imprisonment,  and  if  there- 
after, during  such  term,  the  defendant  by  any  legal  means  is 
temporarily  released  from  such  imprisonment  and  subsequently 
returned  thereto,  the  time  during  which  he  was  at  large  must 
nol  be  computed  as  part  of  such  term. 

fc  L  61   Cal.    436;   S6   Cal.    429;    132  Cal.    34/. 

Imprisonment  for  life. 

671.  Whenever  any  person  is  declared  punishable  for  a  crime 
by  imprisonment  in  the  state  prison  for  a  term  not  less  than 
any  specified  number  of  years,  and  no  limit  to  the  duration  of 
such  imprisonment  is  declared,  the  court  authorized  to  pro- 
nounce judgment  upon  such  conviction  may,  in  its  discretion, 
sentence  such  offender  to  imprisonment  during  his  natural  life, 
or  for  any  number  of  years  not  less  than  that  prescribed. 

61    Cal.    436;    65   Cal.    299;    98   Cal.    129;    118    Cal. 
93;    123   Cal.    416;    124   Cal.    153;    131   Cal.    316. 

Fine  may  be  added  to  imprisonment. 

672.  Upon  a  conviction  for  any  crime  punishable  by  impris- 
onment in  any  jail  or  prison,  in  relation  to  which  no~  fine  is 
herein  prescribed,  the  court  may  impose  a  fine  on  the  offender 
not  exceeding  two  hundred  dollars,  in  addition  to  the  imprison- 
ment prescribed. 

Civil  rights  of  convict  suspended. 

673.  A  sentence  of  imprisonment  in  a  state  prison  for  any 
term  less  than  for  life  suspends  all  the  civil  rights  of  the  per- 
son so  sentenced,  and  forfeits  all  public  offices  and  all  private 
trusts,  authority,  or  power  during  such  imprisonment. 

124    Cal.    565. 


615  GENERAL  PROVISIONS,  674-679a 

Civil  death. 

674.  A  person  sentenced  to  imprisonment  in  the  state  prison 
for  life  is  thereafter  deemed  civilly  dead. 

124    Cal.    565;    125    Cal.    419. 

Limitations  on  two   preceding  sections. 

675.  The  provisions  of  the  last  two  preceding  sections  must 
not  be  construed  to  render  the  persons  therein  mentioned  Incom- 
petent as  witnesses  upon  the  trial  of  a  criminal  action  or  pro- 
ceeding, or  incapable  of  making  and  acknowledging  a  sale  or 
conveyance  of  property.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  435.     In  effect  July  1,  1874.] 

124  Cal.    565;    125    Cal.    419. 

Person  of  convict  protected. 

676.  The  person  of  a  convict  sentenced  to  imprisonment  in 
the  state  prison  is  under  the  protection  of  the  law,  and  any  injury 
to  his  person,  not  authorized  by  law,  is  punishable  in  the  same 
manner  as  if  he  was  not  convicted  or  sentenced. 

125  Cal.    419. 

Forfeitures. 

677.  Nc  conviction  of  any  person  for  crime  works  any  for- 
feiture of  any  property,  except  in  cases  in  which  a  forfeiture 
is  expressly  imposed  by  law;  and  all  forfeitures  to  the  people 
of  this  state,  in  the  nature  of  a  deodand,  or  where  any  person 
shall  fiee  from  justice,  are  abolished. 

124  Cal.   565;   125   Cal.   420. 

Valuation  in  gold  coin. 

678.  Whenever  in  this  code  the  character  or  grade  of  an 
offense,  or  its  punishment,  is  made  to  depend  upon  the  value 
of  property,  such  value  shall  be  estimated  exclusively  in 
United  States  gold  coin.  [New  section  approved  March  30, 
1874;  Amendments  1873-4,  p.  435.     In  effect  July  1,  1874.] 

131    Cal.    234. 

Coercion  or  compulsion  of  persons  seeking  employment. 

679.  Any  person  or  corporation  within  this  state,  or  agent  or 
officer  on  behalf  of  such  person  or  corporation,  who  shall  here- 
after coerce  or  compel  any  person  or  persons  to  enter  into  an 
agreement,  either  written  or  verbal,  not  to  join  or  become  a 
member  of  any  labor  organization,  as  a  condition  of  such  person 
or  persons  securing  employment  or  continuing  in  the  employ- 
ment of  any  such  person  or  corporation,  shall  be  guilty  of  a 
misdemeanor.  [New  section  approved  March  14,  1893;  Stats, 
1893,  p.  176.] 

Limiting  sale  of  convict-made  goods. 

679a.  1.  It  shall  be  unlawful  for  any  person  to  sell,  expose 
for  sale,  or  offer  for  sale  within  this  state,  any  article  or  articles 
manufactured  wholly  or  in  part  by  convict  or  other  prison 
labor,  except  articles  the  sale  of  which  is  specifically  sanctioned 
by  law. 

2.  Every  person  selling,  exposing  for  sale,  or  offering  for 
sale  any  article  manufactured  in  this  state  wholly  or  in  part 
by  convict  or  other  prison  labor,  the  sale  of  which  is  not  spe- 
cifically sanctioned  by  law,  shall  be  guilty  of  a  misdemeanor. 
{Stats.  1901,  p.  326.] 


680  PENAL  CODE.  616 

Payment  of  wages  to  employees  in   a  saloon. 

680.  Every  person  who  shall  pay  any  employee  his  wages, 
or  any  part  thereof,  while  such  employee  is  in  any  saloon,  bar- 
room, or  other  place  where  intoxicating  liquors  are  sold  at 
retail,  unless  said  employee  is  employed  in  such  saloon,  bar- 
room, or  such  other  place  where  intoxicating  liquors  are  sold, 
shall  be  deemed  guilty  of  a  misdemeanor.     [Stats.  1901,  p.  660.] 


F»ARX    II. 


OF  CRIMINAL  PROCEDURE., 


PRELIMINARY  PROVISIONS. 

fiec.    681.  No   person   punishable  but  on   legal  conviction. 

682.  Public  offenses,  how  prosecuted. 

683.  Criminal  action  defined. 

684.  Parties  to  a  criminal  action. 

685.  The  party  prosecuted  known  as  defendant. 

686.  Rights  of  defendant  In  a  criminal  action. 

687.  Second   prosecution  for  the  same   offense  prohibited. 

688.  No    person    to    be    a    witness    against    himself   In   a    criminal 

action,  or  to  be  unnecessarily  restrained. 

689.  No  person  to  be  convicted  but  upon  verdict  or  judgment. 

No  person  punishable  but  on  legal  conviction. 

681.  No  person  can  be  punished  for  a  public  offense,  except 
upon  a  legal  conviction  in  a  court  having  jurisdiction  thereof. 

68    Cal.    180. 

Public  offenses,  how  prosecuted. 

682.  Every  public  offense  must  be  prosecuted  by  indictment 
or  information,  except: 

1.  Where  proceedings  are  had  for  the  removal  of  civil  ofllcers 
of  the  state; 

2.  Offenses  arising  in  the  militia  when  in  actual  service,  and 
In  the  land  and  naval  forces  in  time  of  war,  or  which  the  state 
may  keep,  with  the  consent  of  congress,  in  time  of  peace; 

3.  Offenses  tried  in  justices'  and  police  courts.  [Amendment 
approved  April  9,  1880;  Amendments  1880,  p.  10.  In  effect  April 
9,  1880.] 

53   Cal.    413;   57   Cal.    561;    108   Cal.    663;    109   Cal. 
450;    111  Cal.    240. 

Criminal  action  defined. 

683.  The  proceeding  by  which  a  party  charged  with  a  pub- 
lic offense  is  accused  and  brought  to  trial  and  punishment,  is 
known  as  a  criminal  action. 

Parties  to  a  criminal  action. 

684.  A  criminal  action  is  prosecuted  in  the  name  of  the  peo- 
ple of  the  state  of  California,  as  a  party,  against  the  person 
charged  with  the  offense. 

61    Cal.    58;    111    Cal.    241. 

The  party  prosecuted  known  as  defendant. 

685.  The  party  prosecuted  in  a  criminal  action  is  designated 
in  this  code  as  the  defendant. 


686-689  PENALK)ODE.  618 

Rights  of  defendant  in  a  criminal  action, 

686.  In  a  criminal  action  ttie  defendant  is  entitled: 

1.  To  a  speedy  and  public  trial. 

2.  To  be  allowed  counsel  as  in  civil  actions,  or  to  appear  and 
defend  in  person  and  with  counsel. 

3.  To  produce  witnesses  on  his  behalf,  and  to  be  confronted 
with  the  witnesses  against  him,  in  the  presence  of  the  court, 
except  that  where  the  charge  has  been  preliminarily  examined 
before  a  committing  magistrate  and  the  testimony  taken  down 
by  question  and  answer  in  the  presence  of  the  defendant,  who 
has,  either  in  person  or  by  counsel,  cross-examined  or  had  an 
opportunity  to  cross-examine  the  witness;  or  where  the  testi- 
mony of  a  witness  on  the  part  of  the  people,  who  is  unable  to 
give  security  for  his  appearance,  has  been  taken  conditionally 
in  the  like  manner  in  the  presence  of  the  defendant,  ■^ho  has, 
either  in  person  or  by  counsel,  cross-examined  or  had  an  oppor- 
tunity to  cross-examine  the  witness,  the  deposition  of  such  wit- 
ness may  be  read,  upon  its  being  satisfactorily  shown  to  the 
court  that  he  is  dead  or  insane,  or  cannot  with  due  diligence  be 
found  within  the  state.  ' 

50,  Cal.  96;  54  Cal.  577;  55  Cal.  464;  57  Cal.  568; 
61  Cal.  477;  64  Cal  86;  66  Cal.  102;  66  Cal.  676; 
73  cal.  207;  85  Cal.  427;  98  Ca|.  131;  99  Cal.  233; 
100  Cal.  5;  105  Cal.  656;  106  Cal.  649;  lOS  Cal. 
444;  111  Cal.  88;  116:  Cal.  251;  121  Cal.  498;  126 
Cal.  381;  132  Cal.  263. 

Second  prosecution  for  the  same  offense  prohibited. 

687.  No  person  can  be  subjected  to  a  second  prosecution  for 
a  public  offense  for  which  he  has  once  been  prosecuted  and 
convicted  or  acquitted. 

79   Cal.    430;    99   Cal.    231;    114    Cal.    57;    132   Cal.  501. 

No  person  to  be  a  witness  against  himself  in  a  criminal  action^ 
or  to  be  unnecessarily  restrained. 

688.  No  person  can  be  compelled,  in  a  criminal  action,  to  be 
a  witness  against  himself;  nor  can  a  person  charged  with  a 
public  offense  be  subjected,  before  conviction,  to  any  more 
restraint  than  is  necessary  for  his  detention  to  answer  the 
charge. 

64  Cal.    340;   73   Cal.    443. 

No  person  to  be  convicted  but  upon  verdict  or  judgment. 

689.  No  person  can  be  convicted  of  a  public  offense  unless 
by  the  verdict  of  a  jury,  accepted  and  recorded  by  the  court, 
or  upon  a  plea  of  guilty,  or  upon  judgment  against  him  upon  a 
demurrer  in  the  case  mentioned  in  section  one  thousand  and 
eleven,  or  upon  a  judgment  of  a  court,  a  jury  having  been 
waived  in  a  criminal  case  not  amounting  to  felony.  [Amend- 
ment approved  February  25,  1880;  Amendments  1880,  p.  4.  In 
effect  immediately.] 

64   Cal.    341j    68   Cal.   ISO. 


619  LAWFUL  RESISTANCE — INTERVENTIONS.  692-69 

TITLE  I. 
OF  THE  PREVENTION  OF  PUBLIC  OFFENSES. 

Chapter    I.  Of   lawful   resistance,   692-4. 

II.  Of  the  intervention  of  the  officers  of  justice,  697-8. 

III.  Security  to  keep  the  peace,  701-14. 

IV.  Police  in  cities  and  towns,  and  their  attendance  at 

exposed  places,  719-720. 
V.     Suppression  of  riots,  723-33. 

CHAPTER  I. 

"of  lawful  RESISTANCE. 
Sec.    G92.    Lawful  resistance,  by,  whom  made. 

0)93.    By  the  party.  In  what  cases  and  to  what  extent. 
694.    By  other  parties,  in  what  cases. 

Lawful  resistance,  by  whom  made. 

692.  Lawful  resistance  to  the  commission  of  a  public  offense 
may  be  made: 

1.  By  the  party  about  to  be  injured; 

2.  By   other   parties. 

By  the  party,  in  what  cases  and  to  what  extent. 

693.  Resistance  sufficient  to  prevent  the  offense  may  be  made 
by  the  party  about  to  be  injured: 

1.  To  prevent  an  offense  against  his  person,  or  his  family, 
or  some  member  thereof. 

2.  To  prevent  an  illegal  attempt  by  force  to  take  or  injure 
property  in  his  lawful  possession. 

By  other  parties,  in  what  cases. 

694.  Any  other  person,  in  aid  or  defense  of  the  person  about 
to  be  injured,  may  make  resistance  sufficient  to  prevent  the 
offense. 


CHAPTER  II. 

INTERVENTIONS  OF  THE  OFFICERS  OF  JUSTICE. 

Sec.    697.    Intervention   of  officers,   in  what  cases. 
698.    Persons  acting  in  their  aid  justified. 

Intervention  of  officers,  In  what  cases. 

697.  Public  offenses  may  be  prevented  by  the  intervention  of 
the  officers  of  justice: 

1.  By  requiring  security  to  keep  the  peace; 

2.  By  forming  a  police  in  cities  and  towns,  and  by  requiring, 
their  attendance  in  exposed  places; 

3.  By  suppressing  riots. 

Persons  acting  in  their  aid  justified. 

698.  When  the  officers  of  justice  are  authorized  to  act  in  the 
prevention  of  public  offenses,  other  persons,  who,  by  their  com- 
mand, act  in  their  aid,  are  justified  in  so  doing. 


701-706  PENAL  CODE.  620 

CHAPTER  III. 
SECURITY  TO  KEEP  THE  PEACE. 

Sec.    701.  Information  of  threatened  offense. 

702.  Examination  of  compiainant  and  witnesses. 

703.  Warrant  of  arrest. 

704.  Proceedings  on  cljarges  being  controverted. 

705.  Person  complained  of,  wlien  to  be  discharged. 

706.  Security  to  keep  the  peace,  when  required.  . 

707.  Effect  of  giving  or  refusing  to  give  security.  ' 

708.  Person  committed  for  not  giving  security. 

709.  Undertaking  to  be  filed  in  clerk's  office. 

710.  Security  reauired  for  assault  committed!  In  court. 

711.  Undertaking,  when  broken. 

712.  Undertaking,  when  and  how  to  be  prosecuted. 

713.  Evidence  of  breach. 

714.  Security  for  the  peace. 

Information  of  threatened  offense. 

701.  An  information  may  be  laid  before  any  of  the  magis- 
trates mentioned  "in  section  808,  that  a  person  has  threatened 
to  commit  an  offense  against  the  person  or  property  of  another. 

123     Cal.     29. 

Examination  of  complainant  and  witnesses. 

702.  When  the  information  is  laid  before  such  magistrate  he 
must  examine  on  oath  the  informer,  and  any  witness  he  may 
produce,  and  must  take  their  depositions  in  writing,  and  cause 
them  to  be  subscribed  by  the  parties  making  them. 

123     Cal.     29. 

Warrant  of  arrest. 

703.  If  it  appears  from  the  depositions  that  there  is  just  rea- 
son to  fear  the  commission  of  the  offense  threatened,  by  the 
person  so  informed  against,  the  magistrate  must  issue  a  war- 
rant, directed  generally  to  the  sheriff  of  the  county,  or  any 
constable,  marshal,  or  policeman  in  the  state,  reciting  the  sub- 
stance of  the  information,  and  commanding  the  officer  forthwith 
to  arrest  the  person  informed  of  and  bring  him  before  the 
magistrate. 

123     Cal.      29. 

Proceedings  on  charges  being  controverted. 

704.  When  the  person  informed  against  is  brought  before  the 
magistrate,  if  the  charge  be  controverted,  the  magistrate  must 
take  testimony  in  relation  thereto.  The  evidence  must  be 
reduced  to  writing    and  subscribed  by  the  witnesses. 

123     Cal.     129. 

Person  complained  of,  when  to  be  discharged. 

705.  If  it  appears  that  there  is  no  just  reason  to  fear  the 
commission  of  the  offense  alleged  to  have  been  threatened,  the 
person  complained  of  must  be  discharged. 

123     Cal.     29. 

Security  to  keep  the  peace,  when  required. 

706.  If,  however,  there  is  just  reason  to  fear  the  commission 
of  the  oliense,  the  person  complained  of  may  be  required  to 
enter  into  an  undertaking  in  such  sum,  not  exceeding  five  thou- 
sand dollars,  as  the  magistrate  may  direct,  with  one  or  more 
sufficient  sureties,  to  keep  the  peace  towards  the  people  of  this 
state,  and  particularly  towards  the  informer.  The  undertaking 
is  valid  and  binding  for  six  months,  and  may,  upon  the  renewal 
of  the  information,  be  extended  for  a  longer  period,  or  a  new 
undertaking  may  be  required. 


621  SECURITY    TO  KEEP  PEACE — POLICE.  707-719' 

Effect  of  giving  or  refusing  to  give  security. 

707.  If  the  undertaking  required  by  the  last  section  is  given, 
the  party  informed  of  must  be  discharged.  If  he  does  not  give 
it,  the  magistrate  must  commit  him  to  prison,  specifying  in  the 
warrant  the  requirement  to  give  security,  the  amount  thereof, 
and  the  omission  to  give  the  same. 

123     Cal.     29. 

Person  committed  for  not  giving   security. 

708.  If  the  person  complained  of  is  committed  for  not  giving 
the  undertaking  required,  he  may  be  discharged  by  any  magis- 
trate, upon  giving  the  same. 

123     Cal.     '29. 

Undertaking  to  be  filed  in  clerk's  office. 

709.  The  undertaking  must  be  filed  by  the  magistrate  in  the 
office  of  the  clerk  of  the  county. 

123     Cal.     29. 

Security  required  for  assault  committed  in  court. 

710.  A  person  who,  in  the  presence  of  a  court  or  magistrate, 
assaults  or  threatens  to  assault  another,  or  to  commit  an  offense 
against  his  person  or  property,  or  who  contends  with  another 
with  angry  words,  may  be  ordered  by  the  court  or  magistrate  to 
give  security,  as  in  this  chapter  provided,  and  if  he  refuse  to  do 
so,  may  be  committed  as  provided  in  section  707. 

123     Cal.     29. 

Undertaking,  when  broken. 

711.  Upon  the  conviction  of  the  person  informed  against  of 
a  breach  of  the  peace,  the  undertaking  is  broken. 

123     Cal.     29. 

Undertaking,  when  and  how  to  be  prosecuted. 

712.  Upon  the  district  attorney's  producing  evidence  of  such 
conviction  to  the  Superior  Court  of  the  county,  the  court  must 
order  the  undertaking  to  be  prosecuted,  and  the  district  attor- 
ne5'  must  thereupon  commence  an  action  upon  it  in  the  name 
of  the  people  of  this  state.  [Amendment  approved  April  12, 
1880;  Amendments  1880,  p.  32.    In  effect  April  12,  1880.] 

123     Cal.     29. 

Evidence  of  breach. 

713.  In  the  action  the  offense  stated  in  the  record  of  con- 
viction must  be  alleged  as  a  breach  of  the  undertaking,  and  such 
record  is  conclusive  evidence  of  the  breach. 

123     Cal.     29. 

Security  for  the  peace. 

714.  Security  to  keep  the  peace,  or  be  of  good  behavior,  can- 
not be  required  except  as  prescribed  in  this  chapter. 

123     Cal.     29. 

CHAPTER  IV. 

POLICE  IN  CITIES  AND  TOWNS,  AND  THEIR  ATTENDANCE 

AT  EXPOSED  PLACES. 

Sec.    719.    Organization  and  regulation  of  tlie  poiice. 

720.    Force  to   preserve  ttie   peace  at   public  meetings. 

Organization  and  regulation  of  the  police. 

719.  The  organization  and  regulation  of  the  police,  in  the 
cities  and  towns  of  this  state,  is  governed  by  special  laws. 


720-727  PENAL  CODE.  622 

Force  to  preserve  the  peace  at  public  meetings. 

720.  The  mayor  or  other  officer  having  the  direction  of  the 
police  of  a  city  or  town  must  order  a  force,  sufficient  to  pre- 
serve the  peace,  to  attend  any  public  meeting,  when  he  is  satis- 
fied that  a  breach  of  the  peace  is  reasonably  apprehended. 


CHAPTER  V. 
SUPPRESSION  OF  RIOTS. 

Sec.    723.  Power  of  sheriff  In  overcoming  resistance. 

724.  Officer  to  certify  to  court  tlie  names  of  resisters,  etc. 

72.5.  Governor  to  order  out  military  to  aid   in  executing  process. 

726.  Magistrates   and   officers  to   command   rioters   to   disperse. 

727.  To  arrest  rioters  if  they  do  not  disperse. 

728.  Officers  who  may  order  out  the  military. 

729.  Commanding'  officer  and  troops  to  obey  the  order. 

730.  Armed  force  to  obey   orders  of   whom. 

731.  Conduct  of  the  troops. 

732.  Governor  may  declare  a  county  in  a  state  of  insurrectloa. 

733.  May   revoke  the  proclamation. 
■734.  Right  to  parade  with  arms. 

Power  of  slieriff  in  overcoming  resistance. 

723.  When  a  sheriff  or  other  public  officer  authorized'  tCT  exe- 
cute process  finds,  or  has  reason  to  apprehend  that  resistance 
will  be  made  to  the  execution  of  the  process,  he  may  command 
as  many  male  inhabitants  of  his  county  as  he  may  think  proper 
to  assist  him  in  overcoming  the  resistance,  and,  if  necessary, 
in  seizing,  arresting,  and  confining  the  persons  resisting,  their 
aiders  and  abettors. 

Officers  to  certify  to  court  tlie  names  of  resisters,  etc. 

724.  The  officer  must  certify  to  the  court  from  which  the 
process  issued  the  names  of  the  persons  resisting,  and  their 
aiders  and  abettors,  to  the  end  that  they  may  be  proceeded 
against  for  their  contempt  of  court. 

Governor  tb  order  out  military  to  aid  in  executing  process. 

725.  If  it  appears  to  the  governor  that  the  civil  power  of  any 
county  is  not  sufficient  to  enable  the  sheriff  to  execute  process 
delivered  to  film,  he  must,  upon  the  application  of  the  sheriff  of 
the  county,  order  such  portion  as  shall  be  sufficient,  or  the 
whole,  if  necessary,  of  the  organized  national  guard  or  enrolled 
militia  of  the  state,  to  proceed  to  the  assistance  of  the  sheriff. 

iVIagistrates  and   officers  to  command   rioters  to  disperse. 

726.  Where  any  number  of  persons,  whether  armed  or  not, 
are  unlawfully  or  riotously  assembled,  the  sheriff  of  the  county 
and  his  deputies,  the  officials  governing  the  town  or  city,  or  the 
justices  of  the  peace  and  constables  thereof,  or  any  of  them, 
must  go  among  the  persons  assembled,  or  as  near  to  them  as 
possible,  and  command  them,  in  the  name  of  the  people  of  the 
state,  immediately  to  disperse. 

To  arrest  rioters  if  tliey  do  not  disperse. 

727.  If  the  persons  assembled  do  not  immediately  disperse, 
such  magistrates  and  officers  must  arrest  them,  and  to  that  end 
may  command  the  aid  of  all  persons  present  oi  within  the 
county. 


623  SUPPRESSION  OF  RIOTS.  728-732 

Officers  who  may  order  out  the  military. 

,728.  When  there  is  an  unlawful  or  riotous  assembly  with  the 
intent  to  commit  a  felony,  or  to  offer  violence  to  person  or 
property,  or  to  resist  by  force  the  laws  of  the  state  or  of  the 
United  States,  and  the  fact  is  made  known  to  the  governor,  by 
any  justice  of  the  Supreme  Court,  or  the  judge  of  the  Superior 
Court,  or  sheriff  of  the  county,  or  the  mayor  or  chief  of  police 
of  a  city,  or  the  president  of  the  board  of  supervisors  of  the 
cities  and  counties  of  Sacramento  and  San  Francisco,  the  gov- 
ernor may  issue  an  order  directed  to  the  commanding  officer  of 
a  division  or  brigade  of  the  organized  National  Guard,  or  en- 
rolled militia  of  the  state,  to  order  his  command,  or  such  part 
thereof  as  may  be  necessary,  into  active  service,  and  to  appear 
at  a  time  and  place  therein  specified  to  aid  the  civil  authorities 
in  suppressing  violence  and  enforcing  the  laws.  [Amendment 
approved  April  12,  1880;  Amendments  1880,  p.  32.  In  effect 
April  12,  1880.1 

Commanding  officer  and  troops  to  obey  the  order. 

729.  The  organized  National  Guard  or  enrolled  militia,  or 
such  portion  thereof  as  shall  be  called  into  active  service,  as 
provided  in  section  seven  hundred  and  twenty-eight,  must  ap- 
pear at  the  time  and  place  appointed,  fully  armed  and  equipped, 
and  with- not  less  than  forty  rounds  of  ball  cartridge  to  each 
man.  if  infantry  or  cavalry,  and  with  not  less  than  twenty 
rounds  of  grape  canister,  or  round  shot,  if  artillery. 

Armed  force  to  obey  orders  of  whom. 

730.  "When  an  armed  force  is  called  out  for  the  purpose  of 
suppressing  an  unlawful  or  riotous  assembly,  or  arresting  the 
offenders,  and  is  placed  under  the  temporary  direction  of  any 
civil  officer,  as  provided  in  section  seven  hundred  and  thirty-one, 
it  must  obey  the  orders  in  relation  thereto  of  such  civil  officer. 
Conduct  of  the  troops. 

731.  Whenever  any  portion  of  the  National  Guard  or  enrolled 
militia  shall  have  been  called  into  active  service  to  suppress  an 
insurrection  or  rebellion,  to  disperse  a  mob,  or  to  enforce  the 
execution  of  the  laws  of  the  state  or  of  the  United  States,  the 
commanding  officer  shall  use  his  own  discretion  with  respect  to 
the  propriety  of  attacking  or  firing  upon  any  mob  or  unlawful 
assembly;  and  his  honest  and  reasonable  judgment  in  the  ex- 
ercise of  his  duty  shall  be  full  protection,  civilly  and  criminally, 
for  any  act  or  acts  done  while  on  duty.  No  oificer  who  has  been 
called  out  to  sustain  the  civil  authorities  shall,  under  any  pre- 
tense, or  in  compliance  with  any  order,  fire  blank  cartridges 
upon  any  mob  or  unlawful  assemblage  under  penalty  of  being 
cashiered  by  sentence  of  a  court-martial.  [Amendment  approved 
March  26,  1895;  Stats.  1895,  193.     In  effect  March  26,  1895.] 

Governor  may  declare  a  county  in  a  state  of  insurrection, 

732.  When  the  governor  is  satisfied  that  the  execution  of 
civil  or  criminal  process  has  been  forcibly  resisted  in  any  county 
by  bodies  of  men,  or  that  combinations  to  resist  the  execution 
of  process  by  force  exist  in  any  county,  and  that  the  power  of 
the  county  has  been  exerted  and  has  not  been  suflficient  to  en- 
able the  officers  having  the  process  to  execute  it,  he  may,  on  the 
application  of  the  officer,  or  of  the  district  attorney,  or  judge  of 
a  Superior  Court  of  the  county,  by  proclamation,  published  in 
such  papers  as  he  may  direct,   declare  the  county  to  be  in  a 


733-734  PENAL  CODE.  624 

state  of  insurrection,  and  may  order  into  the  service  of  the 
state  such  number  and  description  of  the  organized  National 
Guard,  or  volunteer  uniformed  companies,  or  other  militia  of 
the  state,  as  he  deems  necessary,  to  serve  for  'such  term  and 
under  the  command  of  such  officer  as  he  may  direct.  [Amend- 
ment approved  April  12,  1880;  Amendments  1880,  32.  In  effect 
April  12,  1880.] 

May  revoke  the  proclamation. 

733.  The  governor  may,  when  he  thinks  proper,  revoke  the 
proclamation  authorized  by  the  last  section,  or  declare  that  it 
shall  cease  at  the  time  and  in  the  manner  directed  by  him. 

Right  to  parade  with  arms. 

734.  It  shall  not  be  lawful  for  any  body  of  men  whatever,  other 
than  the  regular  organized  National  Guard  of  this  state,  and  the 
troops  of  the  United  States,  to  associate  themselves  together  as 
a  military  company  or  organization,  to  drill  or  parade  with  arms 
in  any  city  or  town  of  this  state,  without  the  license 
of  the  governor  thereof,  which  license  may  at  any  time 
be-  revoked;  and  provided  further,  that  students  in  educational 
institutions  where  military  science  is  a  part  of  the  course  of 
instruction  may,  with  the  consent  of  the  governor,  drill  and 
parade  with  arms  in  public  under  the  superintendence  of  their 
instructor;  provided,  that  nothing  herein  contained  shall  be  con- 
trued  so  as  to  prevent  benevolent  or  social  organizations  from 
wearing  swords.  And  any  persons  or  person  violating  any  of 
the  provisions  of  this  section  shall  be  guilty  of  a  misdemeanor 
and  subject  to  arrest  and  punishment  therefor.  [New  section 
approved  March  26,  1895;  Stats.  18t5.  193.  In  effect  March  26, 
1895.] 


625  IMPEACHMENTS.  737-741 

TITLE   II. 
OF  JUDICIAL  PROCEEDINGS  FOR  THE  REMOVAL  OF  PUB- 
LIC OFFICERS  BY  IMPEACHMENT  OR  OTHERWISE. 

Chapter  I.     Of  Impeachments,  Sees.  737-53. 

II.    Of  the  Removal  of  Civil  Officers  otherwise  than  by 
Impeachment,  Sees.  758-72. 

CHAPTER  I. 
OF  IMPEACHMENTS. 

Sec.    737.  Officers  liable  to  Impeachment. 

738.  Articles,  how  prepared.    Trial  by  senate. 

739.  Articles  of  impeachment. 

740.  Time   of  hearing.    Service  on   defendant. 

741.  Service,  how  made. 

742.  Proceedings  on  failure  to  appear. 

743.  Defendant,  after  appearance,  may  answer  or  demur. 

744.  If  demurrer  is  overruled,  defendant  must  answer. 

745.  Senate   to   be   sworn. 

746.  Two-thil'ds    necessary    to   a    conviction. 

747.  Judgment  on  conviction,  how  pronounced. 

748.  The  same. 

749.  Nature  of  the  judgment. 

750.  Effect  of  Judgment  of  suspension. 

751.  Impeachment  disqualifies  until  acquittal.     Vacancy,  how  filled. 

752.  Presiding   officer   when    lieutenant-governor    is   impeached. 

753.  Impeachment  not  a  bar  to  indictment. 

Officers  liable  to  impeachment. 

737.  The  governor,  lieutenant-governor,  secretary  of  state, 
controller,  treasurer,  attorney-general,  surveyor-general,  chief 
justice,  associate  justices  of  the  Supreme  Court,  and  judges  of 
the  Stfperior  Courts,  are  liable  to  impeachment  for  any  mis- 
demeanor in  office.  [Amendments  approved  February  18,  1880; 
amendments  1880,  p.  3.    In  effect  February  18th,  1880.] 

Articles,  how  prepared.     Trial  by  senate. 

738.  All  impeachments  must  be  by  resolutioH'  adopted,  orig- 
inated in,  and  conducted  by  managers  elected  by  the  assembly, 
who  must  prepare"  articles  of  impeachment,  present  them  at  the 
bar  of  the  senate,  and  prosecute  the  same.  The  trial  must  be 
had  before  the  senate,  sitting  as  a  court  of  impeachment. 

Articles  of  impeachment. 

739.  •  When  an  officer  is  impeached  by  the  assembly  for  a  mis- 
demeanor in  office,  the  articles  of  impeachment  must  be  deliv- 
ered to  the  president  of  the  senate. 

* 

Time  of  hearing.     Service  on  defendant. 

740.  The  senate  must  assign  a  day  for  the  hearing  of  the 
impeachment  and  inform  the  assembly  thereof.  The  president 
of  the  senate  must  cause  a  copy  of  the  articles  of  impeachment, 
with  a  notice  to  appear  and  answer  the  same  at  the  time  and 
place  appointed,  to  be  served  on  thei  defendant  not  less  than  ten 
days  before  the  day  fixed  for  the  hearing. 

Service,  how  made. 

741.  The  service  must  be  made  upon  the  defendant  person- 
ally, or  if  he  cannot,  upon  diligent  inquiry,  be  found  within  the 
state,  the  senate,  upon  proof  of  that  fact,  may  order  publication 
to  be  made,  in  sucl    manner  as  it  may  deem  proper,  of  a  notice 

CRIMES--40 


742-749  PENAL  CODE.  626 

requiring  him  to  appear  at  a  specified  time  and  place  and  answer 
the  articles  of  impeachment. 

'Proceedings  on  failure  to  appear. 

742.  If  the  defendant  does  not  appear,  the  senate,  upon  proof 
•of  service  or  publication,  as  provided  in  the  two  last  sections, 

may,  of  its  own  motion  or  for  cause  shown,  assign  another  day 
'for  hearing  the  impeachment,  or  may  proceed,  in  the  absence 
of  the  defendant,  to  trial  and  judgment. 

Defendant,  after  appearance,  may  answer  or  demur. 

743.  When  the  defendant  appears,  he  may  in  writing  object 
to  the  sufficiency  of  the  articles  of  impeachment,  or  he  may 
answer  the  same  by  an  oral  plea  of  not  guilty,  which  plea  must 
be  entered  upon  the  journal,  and  puts  in  issue  every  material 
allegation  of  the  articles  of  impeachment. 

If  demurrer   is   overruled,   defendant   must  answer. 

744.  If  the  objection  to  the  sufficiency  of  the  articles  of 
impeachment  is  not  sustained  by  a  majority  of  the  members  ot 
the  senate  who  heard  the  argument,  the  defendant  must  be 
ordered  forthwith  to  answer  the  articles  of  impeachment.  If 
he  then  pleads  guilty,  or  refuses  to  plead,  the  senate  must 
render  judgment  of  conviction  against  him.  If  he  plead  not 
guilty,  the  senate  must,  at  such  time  as  it  may  appoint,  proceed 
to  try  the  impeachment. 

Senate  to  be  sworn. 

745.  At  the  time  and  place  appointed,  and  before  the  senate 
proceeds  to  act  on  the  impeachment,  the  secretary  must  admin- 
ister to  the  president  of  the  senate,  and  the  president  of  the 
senate  to  each  of  the  members  of  the  senate  then  present,  an 
oath  truly  and  impartially  to  hear,  try,  and  determine  the 
impeachment;  and  no  member  of  the  senate  can  act  or  vote 
upon  the  impeachment,  or  upon  any  question  arising  thereon, 
without  having  taken  such  oath. 

Two-thirds  necessary  to  a  conviction. 

746.  The  defendant  cannot  be  convicted  on  impeachment 
without  the  concurrence  of  two-thirds  of  the  members  elected, 
voting  by  ayes  and  noes,  and  if  two-thirds  of  the  members 
elected  do  not  concur  in  a  conviction  he  must  oe  acquitted. 
[Amendment  approved  February  18,  1880;  amendments  1880,  3. 
In  effect  February  18th,  1880.] 

Judgment  on  conviction,  how  pronounced. 

747.  After  conviction  the  senate  must,  at  such  time  as  It 
may  appoint,  pronounce  judgment,  in  the  form  of  a  resolution 
entered  upon  the  journals  of  the  senate. 

The   same. 

748.  On  the  adoption  of  the  resolution  by  a  majority  of  the 
members  present  who  voted  on  the  question  of  acquittal  or  con- 
viction, it  becomes  the  judgment  of  the  senate. 

Nature  of  the  judgment. 

749.  The  judgment  may  be  that  the  defendant  be  suspended, 
or  that  he  be  removed  from  office  and  disqualified  to  hold  any 
office  of  honor,  trust,  or  profit    under  the  state.     [Amendment 


627  REMOVAL  OF   CIVIL  OFFICERS.  750-759 

approved    February    18,    1880;    amendments    jlo80,    3.     In    effect 
February   18,   1880.] 

Effect  of  judgment  of  suspension. 

750.  If  judgment  of  suspension  is  given,  the  defendant,  during 
the  continuance  thereof,  is  disqualified  from  receiving  the  salary, 
fees,  or  emoluments  of  the  ofiice. 

impeachment  disqualifies  until  acquittal.    Vacancy,  how  filled. 

751.  Whenever  articles  of  impeachment  against  any  officer 
subject  to  impeachment  are  presented  to  the  senate,  such  officer 
is  temporarily  suspended  from  his  office,  and  cannot  act  in  his 
official  capacity  until  he  is  acquitted.  Upon  such  suspension 
of  any  officer  other  than  the  governor,  his  office  must  at  once 
be  temporarily  filled  by  an  appointment  made  by  the  governor, 
with  the  advice  and  consent  of  the  senate,  until  the  acquittal 
of  the  party  impeached;  or,  in  case  of  his  removal,  until  the 
vacancy  is  filled  at  the  next  election,  as  required  by  law. 

Presiding  officer  when   lieutenant-governor  is  impeached. 

752.  If  the  lieutenant-governor  is  impeached,  notice  of  the 
impeachment  must  be  immediately  given  to  the  senate  by  the 
assembly,   that   another   president  may   be   chosen. 

Impeachment  not  a  bar  to  indictment. 

753.  If  the  offense  for  which  the  defendant  is  convicted  on 
impeachment  is  also  the  subject  of  an  indictment  or  information, 
the  indictment  or  information  is  not  barred  thereby.  [Amend- 
ment approved  February  18,  1880;  amendments  1880,  3.  In 
effect  February  18,  1880.] 

CHAPTER  II. 

OF  THE  REMOVAL  OF  CIVIL  OFFICERS  OTHERWISE  THAN 

BY   IMPEACHMENT. 

Sec.    758.  Accusation  to  he  presented  by   the  grand  jury. 

759.  Form  of  accusation. 

760.  To  be  transmitted  to  the  district  attorney,  and  copy  served. 

761.  Proceedings  if  defendant  does  not  appear. 

762.  Defendant  may  object  to  or  deny  the  accusation. 

763.  Form   of  objection. 

764.  Manner  of  denial. 

765.  If  objections   overruled,   defendant  must  answer. 

766.  Proceedings  on  plea  of  guilty,  refusal  to  answer,  etc. 

767.  Trial  by  jury. 

768.  State  and  defendant  entitled  to  process  for  witnesses. 

769.  Judgment  upon  conviction,  and  Its  form. 

770.  Appeal  how  taken.     Defendant  to  be  suspended  and  vacancy 

filled. 

771.  Proceedings  for  the  removal  of  a  district  attorney. 

772.  Removal  of  public  oflScers  by  summary  proceedings. 

Accusation  to  be  presented  by  the  grand  jury. 

758.  An  accusation  in  writing  against  any  district,  county, 
township,  or  municipal  officer,  for  wilfull  or  corrupt  misconduct 
in  office,  may  be  presented  by  the  grand  jury  of  the  county 
for  or  in  which  the  officer  accused  is  elected  or  appointed. 

75    Cal.    151;    85    Cal.    591;    97   Cal.    383;    107    Cal. 
289;   114  Cal.   553;   119   Cal.   232. 

Form  of  accusation. 

759.  The  accusation  must  state  the  offense  charged,  in  ordi- 
nary and  concise  language,  and  without  repetition. 


760-769  PENAL  CODE.  628 

To  be  transmitted  to  the  district  attorney,  and  copy  served. 

760.  The  accusation  must  be  delivered  by  the  foreman  of  the 
grand  jury  to  the  district  attorney  of  the  county,  except  when 
he  is  the  officer  accused,  who  must  cause  a  copy  thereof  to  be 
served  upon  the  defendant,  and  require,  by  notice  in  writing  of 
not  less  than  ten  days,  that  he  appear  before  the  Superior  Court 
of  the  county,  at  a  time  mentioned  in  the  notice,  and  answer 
the  accusation.  The  original  accusation  must  then  be  filed  wit& 
the  clerk  of  the  court.  [Amendment  approved  April  12,  1880; 
amendments  1880,  32.    In  effect  April  12,  1880.1 

Proceedings  if  defendant  does  not  appear. 

761.  The  defendant  must  appear  at  the  time  appointed  In  the 
notice  and  answer  the  accusation,  unless  for  some  suflicient 
cause  the  court  assign  another  day  for  that  purpose.  If  he  does 
not  appear,  the  court  may  proceed  to  hear  and  determine  the 
accusation  in  his  absence. 

Defendant  may  object  to  or  deny  the  accusation. 

762.  The  defendant  may  answer  the  accusation  either  by 
objecting  to  the  sufficiency  thereof,  or  of  any  article  therein, 
or  by  denying  the  truth  of  the  same. 

Form  of  objection. 

763.  If  he  objects  to  the  legal  suflaciency  of  the  accusation, 
the  objection  must  be  in  writing,  but  need  not  be  in  any  specific 
form,  it  being  sufficient  if  it  presents  intelligibly  the  grounds 
of  the  objecton. 

Manner  of  denial. 

764.  If  he  denies  the  truth  of  the  accusation,  the  denial  may 
be  oral  and  without  oath,  and  must  be  entered  upon  the  min- 
utes. 

If  objections  overruled,  defendant  must  answer. 

765.  If  an  objection  to  the  sufficiency  of  the  accusation  is 
not  sustained,  the  defendant  must  answer  thereto  forthwith. 

Proceedings  on  plea  of  guilty,  refusal  to  answer,  etc. 

766.  If  the  defendant  pleads  guilty,  or  refuses  to  answer  the 
accusation,  the  court  must  rend.er  judgment  of  conviction 
against  him.  If  he  denies  the  matters  charged,  the  court  must 
immediately,  or  at  such  time  as  it  may  appoint,  proceed  to  try 
the  accusation. 

Trial  by  jury. 

767.  The  trial  must  be  by  a  jury,  and  conducted  in  all  res- 
pects in  the  same  manner  as  the  trial  of  an  indictment  for  a 
misdemeanor. 

State  and  defendant  entitled  to  process  for  witnesses. 

768.  The  district  attorney  and  the  defendant  are  respectively 
entitled  to  such  process  as  may  be  necessary  to  enforce  the 
attendance  of  witnesses    as  upon  a  trial  of  an  indictment. 

Judgment  upon  conviction,  and  its  form. 

769.  Upon  a  conviction,  the  court  must,  at  such  time  as  it 
may  appoint,  pronounce  judgment  that  the  defendant  be 
removed  from  ofllce;   but,  to  warrant  a  removal,  the  judgment 


629  REMOVAL  OF  CIVIL  OFFICERS.  770-772 

must  be  entered  upon  the  minutes,  and  the  causes  of  removal 
must  be  assigned  therein. 

Appeal,   how  taken.     Defendant  to   be   suspended   and   vacancy 
filled. 

770.  From  a  judgment  of  removal  an  appeal  may  be  taken 
to  the  Supreme  Court,  in  the  same  manner  as  from  a  judgment 
in  a  civil  action;  but  until  such  judgment  is  reversed  the 
defendant  is  suspended  from  his  office.  Pending  the  appeal,  the 
office  must  be  filled  as  in  case  of  a  vacancy. 

83  Cal.   47;   96  Cal.    157;   107  Cal.  2S9. 

Proceedings  for  the  removal  of  a  district  attorney. 

771.  The  same  proceedings  may  be  had  on  like  grounds  for 
the  removal  of  a  district  attorney,  except  that  the  accusation 
must  be  delivered  by  the  foreman  of  the  grand  jury  to  the 
clerk,  and  by  him  to  a  judge  of  the  Superior  Court  of  the 
county,  who  must  thereupon  appoint  some  one  to  act  as  pros- 
ecuting officer  in  the  matter,  or  place  the  accusation  in  the  hands 
of  the  district  attorney  of  an  adjoining  county,  and  require  him 
to  conduct  the  proceedings.  [Amendment  approved  April  12, 
1880;    amendments  1880,  32.    In  effect  April   12,  1880.] 

Removal  of  public  officers  by  summary  proceedings. 

772.  When  an  accusation  in  writing,  verified  by  the  oath  of 
any  person,  is  presented  to  a  Superior  Court,  alleging  that  any 
officer  within  the  jurisdiction  of  the  court  has  been  guilty  of 
charging  and  collecting  illegal  fees  for  services  rendered,  or  to  be 
rendered,  in  his  office,  or  has  refused  or  neglected  to  perform 
the  official  duties  pertaining  to  his  office,  the  court  must  cite 
the  party  charged  to  appear  before  the  court  at  a  time  not  more 
than  ten  nor  less  than  five  days  from  the  time  the  accusation 
was  presented,  and  on  that  day,  or  some  other  subsequent  day 
not  more  than  twenty  days  from  that  on  which  the  accusation 
was  presented,  must  proceed  to  hear,  in  a  summary  manner, 
the  accusation,  and  evidence  offered  in  support  of  the  same, 
and  the  answer  and  evidence  offered  by  the  party  accused; 
and  if,  on  such  hearing,  it  appears  that  the  charge  is  sustained, 
the  court  must  enter  a  decree  that  the  party  accused  be  deprived 
of  his  office,  and  must  enter  a  judgment  for  five  hundred  dollars 
in  favor  of  the  informer,  and  such  costs  as  are  allowed  in  civil 
cases.  [Amendment  approved  April  12,  1880;  amendments  1880, 
53.     In  effect  April  12,  1880.] 

50  Cal.  645:  52  Cal.  623;  56  CaT.  360;  57  Cal.  354; 

68  Cal.  .^25;  75  Cal.  151;  83  Cal.  47:  85  Cal.  643; 

97  Cal.  383;  9S  Cal.  588;  107  Cal.  286;  108.  Cal. 

662;  110  Cal.  656;  HI  Cal.  239;  114  Cal   476; 

114  Cal.  552;  119  Cal.  232;  122  Cal.  293;  130  . 

Cal.  184.  !   ■     ^ 


777-778 


PENAL  CODS. 


630 


TITLE  III." 
OF    THE     PROCEEDINGS    IN     CRIMINAL    ACTIONS     PROS- 
ECUTED BY  INDICTMENT,   TO  THE  COMMITMENT,  IN- 
CLUSIVE. 

Chapter  I.     Of  the  local  jurisdiction  of  public  offenses,  sections 
777-   95. 
II.     Of  the  time  of  commencing   criminal  actions,  sec- 
tions 799-803. 

III.  The  information,  sections  806-9. 

IV.  The  warrant  of  arrest,  sections  811-29. 

V.    Arrest,  by  whom  and  how  made,  sections  834-51. 
VI.    Retaking  after  an  escape  or  rescue,  sections   854-j. 
VII.     Examination  of  the  case  and  discharge  of  defendant, 
or  holding  him  to  answer,  sections  858-83, 


CHAPTER  I. 
OF    THE    LOCAL    JURISDICTION    OF    PUBLIC    OFFENSES. 

Sec.    777.    Jurisdiction  of  offenses  committed  in  this  state. 

778.  Offenses   commenced    witliout,    but   consummated    within    this 

state. 

779.  When  an  inhabitant  ot  this  state  is  concerned  in  a  duel  out 

of  the   same,   and   a   party   wounded  dies   therein. 

780.  Leaving  the    state    to   evade  the   statute  against   dueling. 

781.  Offense  committed  partly  in  one  county  and  partly  In  another. 

782.  Committed  on  the  boundary,  etc.,  of  two  or  more  counties. 

783.  Jurisdiction    of   an    offense    on    board   a    vessel    or    car. 

784.  Jurisdiction    for    kidnapping   or  abduction. 

785.  Jurisdiction   of  an   indictment   for   bigamy  or   Incest. 

786.  Property   feloniously    taken    in  one   county   and   brought   Into 

another. 

787.  Jurisdiction  for  escaping  from  prison. 

788.  Jurisdiction  for  treason  committed  out  of  the  state. 

780.    Jurisdiction    for    stealing,    etc.,    property,    out    of    state,    and 
brought  therein. 

790.  Jurisdiction  for  murder,  etc.,  where  the  injury  was  inflicted  In 

one  county,   and  the  party   dies  out  of  that  county. 

791.  Of  an  indictment  against  an  accessory. 

792.  Of  principals  who  are  not  present,  etc.,  at  commission  of  the 

principal  offense. 

793.  Conviction    or   acquittal    in    another    state    a    bar,    where    the 

jurisdiction  is  concurrent. 

794.  Conviction   or   acquittal    in   another   county    a   bar,    where   the 

jurisdiction  is  concurrent. 

795.  Jurisdiction   of   prize-fight. 

Jurisdiction  of  offenses  committed  in  tliis  state. 

777.  Every  person  is  liable  to  punishment  by  the  laws  of  this 
state,  for  a  public  offense  committed  by  him  therein,  except 
where  it  is  by  law  cognizable  exclusively  in  the  courts  of  the 
United  States. 

Offenses    commenced    without,    but    consummated    within    this 
state. 

778.  When  the  commission  of  a  public  olfense,  commenced 
without  the  state,  is  consummated  within  its  boundaries,  the 
defendant  is  liable  to  punishment  therefor  in  this  state,  though 
he  was  out  of  the  state  at  the  time  of  the  commission  of  the 
offense  charged.  If  he  consummated  it  in  this  state,  through 
the  intervention  of  an  innocent  or  guilty  agent,  or  any  other 
means    proceeding    directly    from    himself,    in    such    case     the 


631  JURISDICTION  OF  OFFENSES.  779-784 

jurisdiction   is  in   the  county   in  which  the  offense   is  consum- 
mated. 

When  an   inhabitant  of  this  state  is  concerned   in  a  duel  out  of 
the  same,  and  a  party  wounded  dies  therein. 

779.  When  an  inhabitant  or  resident  of  this  state,  by  previous 
appointment  or  engagement,  fights  a  duel  or  is  concerned  as 
second  therein,  out  of  the  jurisdiction  of  this  state,  and  in  the 
duel  a  wound  is  inflicted  upon  a  person,  whereof  he  dies  in  this 
state,  the  jurisdiction  of  the  offense  is  In  the  county  where  the 
death  happens. 

Leaving  the  state  to  evade  the  statute  against  dueling. 

780.  When  an  inhabitant  of  this  state  leaves  the  same  for 
the  purpose  of  evading  the  operation  of  the  provisions  of  the 
code  relating  to  dueling  and  challenges  to  fight,  with  the  intent 
or  for  the  purpose  of  doing  any  of  the  acts  prohibited  therein, 
the  j'urisdiction  is  in  the  county  of  which  the  offender  was  an 
inhabitant   when  the  offense  was   committed. 

Offense  committed  partly  in  one  county  and  partly  in  another. 

781.  When  a  public  offense  is  committed  in  part  in  one 
county  and  in  part  in  another,  or  the  acts  or  effects  thereof  con- 
stituting or  requisite  to  the  consummation  of  the  offense  occur 
in  two  or  more  counties,  the  jurisdiction  is  in  either  county. 

51    Cal.    ST9. 

Committed  on  the  boundary,  etc.,  of  two  or  more  counties. 

782.  When  a  public  offense  is  committed  on  the  boundary  of 
two  or  more  counties,  or  within  five  hundred  yards  thereof,  the 
jurisdiction  is  in  either  county. 

55  Cal.    233;    59   Cal     459. 

Jurisdiction  of  an  offense  on  board  a  vessel  or  car. 

783.  When  an  offense  is  committed  in  this  state,  on  board  a 
vessel  navigating  a  river,  bay,  slough,  lake,  or  canal,  or  lying 
therein,  in  the  prosecution  of  her  voyage,  the  jurisdiction  is  in 
any  county  through  which  the  vessel  is  navigated  in  the  course 
of  her  voyage,  or  in  the  county  where  the  voyage  terminates; 
and  when  the  offense  is  committed  in  this  state,  on  a  railroad 
train  or  car  prosecuting  its  trip,  the  jurisdiction  is  in  any  county 
through^  which  the  train  or  car  passes  in  the  course  of  her  trip, 
or  in  the  county  where  the  trip  terminates.  [Amendments 
approved  January  28,  1876;  amendments  1875-6,  116.  In  effect 
in  60  days.l 

103    Cal.     510;    133    Cal.    62-1. 

Jurisdiction  for  kidnapping  or  abduction. 

784.  The  jurisdiction  of  a  criminal  action: 

1.  For  forcibly  and  without  lawful  authority  seizing  and  con- 
fining another,  or  inveigling  or  kidnapping  him,  with  intent, 
against  his  will,  to  cause  him  to  be  secretly  confined  or  imprisoned 
in  this  state,  or  to  be  sent  out  of  the  state,  or  from  one 
county  to  another,  or  to  be  sold  as  a  slave,  or  in  any  way  held  ta 
service;   or, 

2.  For  decoying,  taking,  or  enticing  away  a  child  under  the 
age  of  twelve  years,  with  intent  to  detain  and  conceal  it  from 
Its  parent,  guardian,  or  other  person  having  the  lawful  charge 
of  the  child;  or, 

3.  For    inveigling,    enticing,    or    taking    away    an    unmarried 


785-790  PENAL  CODE.  632 

female  of  previous  chaste  character,  under  the  age  of  twenty- 
five  years,  for  the  purpose  of  prostitution;  or, 

4.  For  taking  away  any  female,  under  the  age  of  sixteen 
years,  from  her  father,  mother,  guardian,  or  other  person  having 
the  legal  charge  of  her  person,  without  their  consent,  either  for 
the  purpose  of  concubinage  or  prostitution; 

Is  in  the  county  in  which  the  offense  is  committed,  or  out 
of  which  the  person  upon  whom  the  offense  was  committed 
may,  in  the  commission  of  the  offense,  have  been  brought,  or  in 
which  an  act  was  done  by  the  defendant  in  instigating,  pro- 
curing, promoting,  or  aiding  in  the  commission  of  the  offense, 
or  in  abetting  the  parties  concerned  therein,  i  Amendment 
approved  April  9,  1880;  amendments  1880,  11.  In  effect  April 
9,  1880.1 

Jurisdiction  of  an  indictment  for  bigamy  or  incest. 

785.  When  the  offense,  either  of  bigamy  or  incest,  is  com- 
mitted in  one  county  and  the  defendant  is  apprehended  In 
another,   the  jurisdiction   is   in  either  county. 

Property   feloniously    taken    in    one    county     and     brought     into 
another. 

786.  When  property  taken  in  one  county  by  burglary,  rob- 
bery, larceny,  or  embezzlement,  has  been  brought  into  another, 
the  jurisdiction  of  the  offense  is  in  either  county.  But  if  at  any 
time  before  the  conviction  of  the  defendant  in  the  latter,  he  is 
indicted  in  the  former  county,  the  sheriff  of  the  latter  county 
must,  upon  demand,  deliver  him  to  the  sheriff  of  the  former. 

74   Cal.    95;    91   Cal.    27;    106  Cal.    640. 

Jurisdiction  for  escaping  from  prison. 

787.  The  jurisdiction  of  a  criminal  action  for  escaping  from 
prison  is  in  any  county  of  the  state.  [Amendment  approved 
April  9,  1880;   amendments  1880,  11.    In  effect  April  9,  1880. J 

Jurisdiction  for  treason  committed  out  of  tiie  state. 

788.  The  jurisdiction  of  a  criminal  action  for  treason,  when 
the  overt  act  is  committed  out  of  the  state,  is  in  any  county  of 
the  state.  [Amendment  approved  April  9,  1880;  amendments 
1880,   11.     In  effect  April   9,  1880.1 

Jurisdiction  for  stealing,  etc.,  property,  out  of  state,  and  brought 
therein. 

789.  The  jurisdiction  of  a  criminal  action  for  stealing  in  any 
other  state  the  property  of  another,  or  receiving  it,  knowing  it 
to  have  been  stolen,  and  bringing  the  same  into  this  state,  is  in 
any  county  into  or  through  which  such  stolen  property  has  been 
brought.  [Amendment  approved  April  9,  1880;  amendments 
1880,  11.    In  effect  April  9,  1880.] 

91   Cal.    27;    122    Cal.    74. 

Jurisdiction  for  murder,  etc.,  where  the   injury  was  inflicted   In 
one  county,  and  the  party  dies  out  of  that  county. 

790.  The  jurisdiction  of  a  criminal  action  for  murder  or 
manslaughter,  when  the  injury  which  caused  the  death  was 
inflicted  in  one  county,  and  the  party  injured  dies  in  another 
county  or  out  of  the  state,  is  in  the  county  where  the  injury  was 
Inflicted.  [Amendment  approved  April  9,  1880;  amendments 
1880,   11.     In   effect  April  9,  1880.1 


633  COMMBNCEMENr  OF  ACTIONS.  791-800 

Of  an  indictment  against  an  accessory. 

791.  In  the  case  of  an  accessory  in  the  commission  of  a 
public  offense,  the  jurisdiction  is  in  the  county  where  the  offense 
of  the  accessory  was  committed,  notwithstanding  the  principal 
offense   was  committed  in  another  county. 

Of   principals  who   are   not   present,   etc.,  at  commission   of  the 
principal   offense. 

792.  The  jurisdiction  of  a  criminal  action  against  a  principal 
in  the  commission  of  a  public  offense,  when  such  principal  is 
not  present  at  the  commission  of  the  principal  offense,  is  in  the 
same  county  it  would  be  under  this  code  if  he  were  so  present 
and  aiding  and  abetting  therein.  [Amendment  approved  April 
9,  1880;  amendments  1880,  11.     In  effect  April  9th,  1880.] 

Conviction  or  acquittal  in  another  state  a  bar,  where  the  juris- 
diction   is  concurrent. 

793.  When  an  act  charged  as  a  public  offense  is  within  the 
jurisdiction  of  another  state  or  country,  as  well  as  of  this  state, 
a  conviction  or  acquittal  thereof  in  the  former  is  a  bar  to  the 
prosecution  or  indictment  therefor  in  this  state. 

Conviction  or  acquittal  in  another  county  a  bar,  where  the  juris- 
diction   is  concurrent. 

794.  When  an  offense  is  within  the  jurisdiction  of  two  or 
more  counties,  a  conviction  or  acquittal  thereof  in  one  county 
is  a  bar  to  a  prosecution  or  indictment  therefor  in  another. 

Jurisdiction  of  prize-fight. 

795.  The  jurisdiction  of  a  violation  of  sections  four  hundred 
aijcl  twelve,  four  hundred  and  thirteen,  and  four  hundred  and 
fovirteen  of  tte  Penal  Code,  or  a  conspiracy  to  violate  either 
of  said  sections,  is  in  any  county: 

First — In  which  any  act  is  done  toward  the  commission  of  the 
offense;    or. 

Second — Into,  out  of,  or  through  which  the  offender  passed  to 
commit  the  offense;  or, 

Third — Where  the  offender  is  arrested.  [New  section  ap- 
proved March  7th.  1874;  amendments  1873-4,  466.  In  effect  in 
60  days.] 

CHAPTER  II. 

OF    THE   TIME   OF   COMMENCING   CRIMINAL   ACTIONS. 

Sec.    799.  No   limitation  for  certain   offenses. 

800.  Ijimitation  of  three  years  in  ali  other  felonies. 

801.  Limitation    of  one   year   in    misdemeanors. 

802.  Exception    when    the    flefenrtant    is    ont   of    the    state. 

803.  Indictment  fonnd,   when  presented  and  filed. 

No  limitations  in  certain  crimes. 

799.  There  is  no  limitation  of  time  within  which  a  pros- 
ecution for  murder,  the  embezzlement  of  public  moneys,  and  the 
falsification  of  public  records  must  be  commenced.  Prosecution 
for  murder  may  be  commenced  at  any  time  after  the  death  of 
the  person  killed,  and  for  the  embezzlement  of  public  money  or 
the  falsification  of  public  records,  at  any  time  after  the  dis- 
covery of  the  crime.  [Amendment  approved  March  20,  1891; 
stats.  1891,  192.] 

Limitation   of  three  years   in    all    other  felonies. 

800.  An   indictment    for   any    other  felony   than    murder,   the 


801-809  PENAL  CODE.  634 

embezzlement  of  public  money,  or  the  falsification  of  public 
records,  must  be  found,  or  an  information  filed,  within  three 
years  after  its  commission.  [Amendment  approved  March  20, 
1891;   stats.  1891.  193.] 

SG    Cal.    SS. 

Limitation  of  one  year  in  misdemeanors. 

801.  An  indictment  for  any  misdemeanor  must  be  found  or 
an  information  filed  within  one  year  after  its  commission. 
[Amendment  approved  April  9,  1880;  amendments  1880,  12.  In 
effect  April  9th.  1880.1 

62  Cal.    142;    77   Cal.   359;   84  Cal.   80;   85  Cal.    88; 
124   Cal.    34. 

Exception   when  the   defendant   is  out  of  the  state. 

802.  If,  when  the  offense  is  committed,  the  defendant  is  out 
of  the  state,  the  indictment  may  be  found  or  an  information 
filed  within  the  term  herein  limited  after  his  coming  within  the 
state,  and  no  time  during  which  the  defendant  is  not  an  inhab- 
itant of,  or  usually  resident  within  this  state,  is  part  of  the 
limitation.  [Amendment  approved  April  9,  1880;  amendments 
1880,  12.     In  effect  April  9,  1880.] 

77   Cal.    259;    84   Cal.    SO;    85   Cal.    89. 

Indictment  found,  when  presented  and  filed. 

803.  An  indictment  is  found,  within  the  meaning  of  this 
chapter,  when  it  is  presented  by  the  grand  jury  in  open  court, 
and  there  received  and  filed. 

CHAPTER  III. 
THE   INFORMATION. 

Sec.    806.  Complaint  defined. 

807.  Magistrate  defined. 

808.  Who    are    magistrates. 
800.  Filing    information. 

Complaint  defined. 

806.  The  complaint  is  the  allegation  in  writing  made  to  a 
court  or  magistrate  that  a  person  has  been  guilty  of  some 
designated  offense.  [Amendment  approved  April  9,  1880;  amend- 
ments 1880,  12.     In  effect  April  9,  1880.] 

6.3    Cal.    615;    111    Cal.     661. 

Magistrate  defined. 

807.  A  magistrate  is  an  officer  having  power  to  issue  a  war- 
rant for  the  arrest  of  a  person  charged  with  a  public  offense. 

68    Cal.    503;    115    Cal.    54. 

Who  are  magistrates. 

808.  The  following  persons  are  magistrates: 

1.  The  justices  of  the  Supreme  Court; 

2.  The  judges  of  the  Superior  Courts; 

3.  Justices  of  the  peace; 

4.  Police  magistrates  in  towns  or  cities.  [Amendment  ap- 
proved March  12,  1880;  amendments  1880,  7.  In  effect  March 
12.  1880.1 

51    Cal.    376;    eS    Cal.    503;    115    Cal.    .54;    118    Cal.    7.S. 

Filing   information. 

809.  When  a  defendant  has  been  examined  and  committed, 
as  provided  in  section  eight  hundred  and  seventy-two  of  this 
code,  it  shall  be  the  duty  of  the  district  attorney,  within  thirty 


685  INFORMATION — WARRANT  OF  ARREST.  811-814 

days  thereafter,  to  file  in  the  Superior  Court  of  the  county  In 
■which  the  offense  is  triable  an  information  charging  the  defend- 
ant with  such  offense.  The  information  shall  be  in  the  name 
of  the  people  of  the  state  of  California,  and  subscribed  by  the 
district  attorney,  and  shall  be  in  form  like  an  Indictment  for 
the  same  offense.  [New  section  approved  April  9,  1880;  amend- 
ments 1880,  12.     In  effect  April  9,  1880.] 

56  Cal.  234;  57  Cal.  561;  65  Cal.  108;  66  Cal.  395; 
66  Cal.  664;  67  Cal.  232;  €8  Cal.  503;  68  Cal. 
5T9;  So  Cal.  8S;  91  Cal.  648;  108  Cal.  663;  109 
Cal.  450;  113  Cal.  284;  117  Cal.  656. 

;  CHAPTER  IV. 

THE    WARRANT    OF    ARREST. 

Sec.    811.    Examination    of    the    prosecutor    and    his    witnesses    upon    the 
information. 

812.  Depositions,    what    to    contain. 

813.  When  warrant  may  issue. 

814.  Form  of  warrant. 

815.  Name   or   description    of   the   defendant   lu   the   warrant,    and 

statement  of  the  offense. 

816.  Warrant  to  be  directed  to  and  executed  l>y   peace  officer. 

817.  Who    are    peace    officers. 

818.  To  what  peace  officers  warrants  are  to  l)e  directed. 

819.  Same;    and   when   and   how   executed   in   another   county. 

820.  Indorsement  on   warrant,   for  service  in  another  county^ 

821.  Defendant  to  be  talcen  before  the  magistrate  issuing  the  war- 

rant,   etc. 

822.  Defendant  arrested  for  misdemeanor  In  another  county,  to  be 

admitted   to   liail. 

823.  Proceedings  on  talcing  l>ail  from  the  defendant  in  such  cases. 

824.  When  hail  is    not  given,    Wlieu   magistrate  who  issued'  warrant 

cannot   act. 

825.  No   delay    in   tailing   defendant   before   magistrate. 

826.  Proceedings    when   defendant   is  taken   before   another    magis- 

trate. 

827.  Proceedings    for    offenses    triable    in    another    county. 

828.  Duty  of  officer. 

829.  Admission  to  bail. 

Examination    of    the    prosecutor    and    his    witnesses    upon    the 
information. 

811.  When  an  information  is  laid  before  a  magistrate  of  the 
commission  of  a  public  offense,  triable  within  the  county,  he 
must  examine  on  oath  the  informant  or  prosecutor,  and  any 
witnesses  he  may  produce,  and  talte  their  depositions  in  writing, 
and  cause  them  to  be  subscribed  by  the  parties  making  them. 

54  Cal.  103;  74  Cal.  166;  91  Cal.  26;  121  Cal. 
531;  131  CaL  578;  133  Cal.  333. 

Depositions,  what  to  contain. 

812.  The  deposition  must  set  forth  the  facts  stated  by  the 
prosecutor  and  his  witnesses,  tending  to  establish  the  com- 
mission of  the  offense  and  the  guilt  of  the  defendant. 

74  Cal.   166;   91  Cal.   23;   133  Cal.   333. 

When   warrant   may   issue. 

813.  If  the  magistrate  is  satisfied  therefrom  that  the  offense 
complained  of  has  been  committed,  and  that  there  is  reasonable 
ground  to  believe  that  the  defendant  has  committed  it,  he  must 
issue  a  warrant  of  arrest. 

74   Cal.    166;    91   Cal.    25. 

Form   of  warrant. 

814.  A  warrant  of  arrest  is  an  order  in  writing,  in  the  name 
of  the  people,  signed  by  a  magistrate,  commanding  the  arrest 


«15-820  PENAL  CODE.  636 

of  the   defendant,   and   may   be   substantially  in  the  following 
form: 

County  of  . 

The  people  of  the  state  of  California  to  any  sneriff,  constable, 
marshal,   or  policeman  of  said  state,  or  of  the  county  of 


Information  on  oath  having  been  this  day  laid  before  me,  by 
A  B,  that  the  crime  of  [designating  itj  has  been  com- 
mitted, and  accusing  C  D  thereof,  you  are  therefore  com- 
manded forthwith  to  arrest  the  above  named  C  D  and  bring  him 
before  me  at  [naming  the  place  |,  or  in  case  of  my  absence  or 
Inability  to  act,  before  the  nearest  or  most  accessible  magistrate 
in  this  county. 

Dated   at  ,  this  —  day  of  ,   eighteen  , 

59    Cal.    355. 

Name  or  description  of  the  defendant  in  the  warrant,  and  state- 
ment of  the  offense. 

815.  The  warrant  must  specify  the  name  of  the  defendant, 
or,  if  it  is  unknown  to;  the  magistrate,  the  defendant  may  be 
designated  therein  by  any  name.  It  must  also  state  the  time  of 
issuing  it,  and  the  county,  city,  or  town  where  it  is  issued,  and 
be  signed  by  the  magistrate,  with  his  name  of  office. 

59    Cal.    355. 

Warrant  to  be  directed  to  and  executed  by  peace  officer. 

816.  The  warrant  must  be  directed  to  and  executed  by  a 
peace  officer. 

Who  are  peace  officers. 

817.  A  peace  officer  is  a  sheriff  of  a  county,  or  a  constable, 
marshal,  or  a  policeman  of  a  township,  city,  or  town. 

120   Cal.    268.  , 

To  what  peace  officers  warrants  are  to  be  directed. 

818.  If  a  warrant  is  issued  by  a  justice  of  the  Supreme  Court, 
or  judge  of  a  Superior  Court,  it  may  be  directed  generally  to 
any  sheriff,  constable,  marshal,  or  policeman  in  the  state,  and 
may  be  executed  by  any  of  those  officers  to  whom  it  may  be 
delivered.  [Amendment  approved  April  12,  1880;  amendments 
1880;   33.     In  effect  April  12,  1880.] 

54    Cal.    103;'  S2    Cal.    190. 

Same;   and  when  and  how  executed  in  another  county. 

819.  If  it  is  issued  by  any  other  magistrate,  it  may  bo 
directed  generally  to  any  sheriff,  constable,  marshal,  or  police- 
man in  the  county  in  which  it  is  issued,  and  may  be  executed 
in  that  county;. or,  if  the  defendant  is  in  another  county,  it  may 
be  executed  therein  upon  the  written  direction  of  a  magistrate 
of  that  county,  indorsed  upon  the  warrant,  signed  by  him,  with 
his  name  of  office,  and  dated  at  the  county,  city,  or  town  where 
it  is  made,  to  the  following  effect:  "This  warrant  may  be 
executed  in  the  county  of  "  [naming  the  county!. 

54    Cal.    103;    82    Cal.     190. 

Indorsement  on  warrant,  for  service  in  another  county. 

820.  The  indorsement  mentioned  in  the  last  section  cannot, 
however,  be  made  unless  the  warrant  of  arrest  be  accompanied 
with  a  certificate  of  the  clerk  of  the  county  where  such  warrant 
was  issued,  under  the  seal  of  the  Superior  Court  thereof,  as 
to  the  official  character  of  the  magistrate,  or,  unless 
upon    the    oath    of    a    credible    witness,    in    writing,    indorsed 


637  WARRAJJT  OF   ARREST,  821-827 

on  or  annexed  to  the  warrant,  proving  the  handwriting  of  the 
magistrate  by  whom  it  was  issued.  Upon  such  proof,  the 
magistrate  indorsing  the  warrant  is  exempted  from  liability 
to  a  civil  or  criminal  action,  though  it  afterwards  appear  that 
the  warrant  was  illegally  or  improperly  issued.  [Amendment 
approved  April  12,  1880;  amendments,  1880,  33.  In  effect  April 
12,  1880.] 

Defendant  to   be  taken   before  the   magistrate   issuing   the  war- 
rant,   etc. 

821.  If  the  offense  charged  is  a  felony,  the  officer  making  the 
arrest  must  take  the  defendant  before  the  magistrate  who  issued 
the  warrant,  or  some  other  magistrate  of  the  same  county,  as 
provided   in  section  824. 

54    Cal.     103;    66    Cal.    217;     67    Cal.    232. 

Defendant   arrested   for   misdemeanor   in    another  county,  to   be 
admitted  to  bail. 

822.  If  the  offense  charged  is  a  misdemeanor,  and  the  defend- 
ant is  arrested  in  another  county,  the  officer  must,  upon  being 
required  by  the  defendant,  take  him  before  a  magistrate  in  that 
county,  who  must  admit  the  defendant  to  oaii,  and  take  bail 
from  him  accordingly. 

54  Cal.   103;   67  Cal.   232 

Proceedings  on  taking  bail  from  the  defendant  in  such  cases. 

823.  On  taking  the  bail,  the  magistrate  must  certify  that  fact 
on  the  warrant,  and  deliver  the  warrant  and  undertaking  of  bail 
to  the  officer  having  charge  of  the  defendant.  The  officer  must 
then  discharge  the  defendant  from  arrest,  and  must,  without 
delay,  deliver  the  warrant  and  undertaking  to  the  clerk  of  the 
court  at  which  the  defendant  is  required  to  appear. 

When  ball   Is  not  given.     When  magistrate  who  issued  warrant 
cannot  act. 

824.  If,  on  the  admission  of  the  defendant  to  bail,  the  bail 
is  not  forthwith  given,  the  officer  must  take  the  defendant^ 
before  the  magistrate  who  issued  the  warrant,  or,  in-  case  of  his 
absence  or  inability  to  act,  before  the  nearest  or  most  accessible 
magistrate  in  the  same  county,  and  must  at  the  same  time 
deliver  to  the  magistrate  the  warrant,  with  his  return  thereon 
indorsed  and  subscribed  by  him. 

54    Cal.    103;    65   Cal.    217. 

No  delay  in  taking  defendant  before  magistrate. 

825.  The  defendant  must  in  all  cases  be  taken  before  the 
magistrate  without  unnecessary  delay,  and  any  attorney-at-law 
entitled  to  practice  in  courts  of  record  of  California,  may,  at  the 
request  of  the  prisoner  after  such  arrest,  visit  the  person  so 
arrested.  [Amendment  approved  April  9,  1880;  amendments 
1880,  30.     In  effect  April  9,  1880.] 

Proceedings  when  defendant  is  taken  before  another  magistrate. 

826.  If  the  defendant  is  brought  before  a  magistrate  other 
than  the  one  who  issued  the  warrant,  the  depositions  on  which 
the  warrant  was  granted  must  be  sent  to  that  magistrate,  or,  if 
they  cannot  be  procured,  the  prosecutor  and  his  witnesses  must 
be  summoned  to  give  their  testimony  anew. 

65    Cal.     217. 

Proceedings  for  offenses  triable  ia  another  county. 

827.  When  an  information  is  laid  before  a  magistrate  of  the 
commission  of  a  public  offense  triable  in  another  county  of  the 


828-836  PENAL  CODE.  638 

state,  but  showing  that  the  defendant  is  in  the  county  where 
the  information  is  laid,  the  same  proceedings  must  be  had  as 
prescribed  in  this  chapter,  except  that  the  warrant  must  require 
the  defendant  to  be  taken  before  the  nearest  and  most  accessible 
magistrate  of  the  county  in  which  the  offense  is  triable,  and 
the  depositions  of  the  Informant  or  prosecutor,  and  of  the 
witnesses  who  may  have  been  produced,  must  be  delivered  by 
the  magistrate  to  the  officer  to  whom  the  warrant  is  delivered. 

Duty   of  officer. 

828.  The  officer  who  executes  the  warrant  must  take  the 
defendant  before  the  nearest  or  most  accessible  magistrate  of 
the  county  in  which  the  offense  is  triable,  and  must  deliver  to 
him  the  depositions  and  the  warrant,  with  his  return  indorsed 
thereon,  and  the  magistrate  must  then  proceed  in  the  same 
manner  as  upon  a  warrant  issued  by  himself. 

Admission  to  bail. 

829.  If  the  offense  charged  in  the  warrant  issued  pursuant 
to  section  827  is  a  misdemeanor,  the  officer  must,  upon  being 
required  by  the  defendant,  take  him  before  a  magistrate  of  the 
county  in  which  the  warrant  was  issued,  who  must  admit  the 
defendant  to  bail,  and  immediately  transmit  the  warrant,  depo- 
sitions, and  undertaking,  to  the  clerk  of  the  court  in  which  the 
defendant  is  required  to  appear. 

CHAPTER  V. 

ARREST,   BY  WHOM   AND   HOW  MADE. 

Sec.    834.  Arrest   defined.    By  whom   made. 

835.  How  am  arrest  is  made  and  what  restraint  allowed. 

836  Arrests  by  peace  officers. 

837.  Arrests   by    private   persons. 

838.  Magistrates  may  order  arrest. 

839.  I'ersons  maljing  arrest  may  summon  assistance. 
J       840.  When  arrest  may  be  made. 

841.  Arrest,   how  made. 

842.  Warrant  must  be  shown,  when. 

843.  What  force  may  be  used. 

844.  Doors  and  windows  may  be  brolsen,  when. 

845.  Same. 

846.  Weapons  may  be  taken  from  persons  arrested. 

847.  Duty  of  a  private  person  who  has  made  an  arrest. 

848.  Duty   of  officer  arresting  with   warrant. 

849.  Person    arrested    without    a    warrant    to    be    taken    before    a 

magistrate.    Information  to  be  filed. 
8.50.    Arrest  by  telegraph. 
851.    Same. 

Arrest  defined.     By  whom   made. 

834.  An  arrest  is  taking  a  person  into  custoay,  in  a  case 
and;  in  the  manner  authorized  by  law.  An  arrest  may  be  made 
by  a  peace  officer  or  by  a  private  person. 

How  an  arrest  is  made  and  what  restraint  allowed. 

835.  An  arrest  is  made  by  an  actual  restraint  of  the  person 
of  the  defendant,  or  by  his  submission  to  the  custody  of  an 
officer.  Th»  defendant  must  not  be  subjected  to  any  more 
restraint  than  is  necessary  for  his  arrest  and  detention. 

Arrests  by  peace  officers. 

836.  A  peace  officer  may  make  an  arrest  in  obedience  to  a 
warrant  delivered  to  him,  or  may,  without  a  warrant,  arrest 
a  person: 


6H9  ARREST,  BY  WHOM  AND    HOW  MADE.  837-843 

1.  For  a  public  offense  committed  or  attempted  in  his 
presence. 

2.  When  a  person  arrested  has  committed  a  felony,  although 
not  in  his  presence. 

3.  When  a  felony  has  in  fact  been  committed,  and  he  has 
reasonable  cause  for  believing  the  person  arrested  to  have  com- 
mitted it. 

4.  On  a  charge  made,  upon  a  reasonable  cause,  of  the  com- 
mission of  a  felony  by  the  party  arrested. 

5.  At  night,  when  there  is  reasonable  cause  to  believe  that 
he  has  committed  a  felony. 

104    Cal.    S».     120     Cal.     268. 

Arrests  by  private  persons. 

837.  A  private  person  may  arrest  another: 

1.  For  a  public  offense  committed  or  attempted  in  his 
presence. 

2.  When  the  person  arrested  has  committed  a  felony, 
although  not   in   his  presence. 

3.  When  a  felony  has  been  in  fact  committed,  and  he  has 
reasonable  cause  for  believing  the  person  arrested  to  have  com- 
mitted it. 

63    Cal.    424;    108    Cal.    57;    127    Cal.    322. 

Magistrates  may  order  arrest. 

838.  A  magistrate  may  orally  order  a  peace  officer  or  private 
person  to  arrest  any  one  committing  or  attempting  to  commit 
a  public  offense  in  the  presence  of  such  magistrate. 

Persons  making  arrest  may  summon  assistance. 

839.  Any  person  making  an  arrest  may  orally  summon  as 
many  persons  as  he  deems  necessary  to  aid  him  therein. 

Wiien  arrest  may  be   made. 

840.  If  the  offense  charged  is  a  felony,  the  arrest  may  be 
made  on  any  day,  and  at  any  time  of  the  day  or  night.  If  it  is  a 
misdemeanor,  the  arrest  cannot  be  made  at  night,  unless  upon 
the  direction  of  the  magistrate,  indorsed  upon  the  warrant. 

Arrest,  how  made. 

841.  The  person  making  the  arrest  must  inform  the  person 
to  be  arrested  of  the  intention  to  arrest  him,  of  the  cause  of 
the  arrest,  and  the  authority  to  make  it,  except  when  the  person 
to  be  arrested  is  actually  engaged  in  the  commission  of  or  an 
attempt  to  commit  an  offense,  or  is  pursued  immediately  after 
Its  commission,  or  after  an  escape. 

Warrant   must   be   shown,   when. 

842.  If  the  person  making  the  arrest  is  acting  under  the 
authority  of  a  warrant,  he  must  show  the  warrant,  if  required. 

What  force   may  be   used. 

843.  When  the  arrest  is  being  made  by  an  officer  under  the 
authority  of  a  warrant,  after  information  of  the  intention  to 
make  the  arrest,  if  the  person  to  be  arrested  either  flees  or 
forcibly  resists,  the  officer  may  use  all  necessary  means  to 
effect  the  arrest.  . 


844-851  PK«AL  CODE.  640 

Doors  and  windows  may  be  broken,  when. 

844.  To  make  an  arrest,  a  private  person,  if  the  offense  be  a 
felony,  and  in  all  cases  a  peace  officer,  may  break  open  the 
door  or  window  of  the  house  in  which  the  person  to  be  arrested 
is,  or  in  which  they  have  reasonable  grounds  for  believing  him 
to  be,  after  having  demanded  admittance  and  explained  the 
purpose  for  which  admittance  is  desired.  [Approved  March. 
30th,  1874;   amendments  1873-4,  435.     In  effect  July  1st,  1874.] 

Same. 

845.  Any  person  who  has  lawfully  entered  a  house  for  the 
purpose  of  making  an  arrest,  may  break  open  the  door  or 
window  thereof  if  detained  therein,  when  necessary  for  the  pur- 
pose of  liberating  himself,  and  an  officer  may  do  the  same, 
when  necessary  for  the  purpose  of  liberating  a  person  who, 
acting  in  his  aid,  lawfully  entered  for  the  purpose  of  making  an 
arrest,   and  is  detained  therein. 

Weapons   may   be  taken   from   persons  arrested. 

846.  Any  person  making  an  arrest  may  take  from  the  person 
arrested  all  offensive  weapons  which  he  may  have  about  his 
person,  and  must  deliver  them  to  the  magistrate  oefore  whom 
he  is  taken. 

Duty  of  a  private  person  who  has  made  an  arrest. 

847.  A  private  person  who  has  arrested  another  for  the  com- 
mission of  a  public  offense  must,  without  unnecessary  delay, 
take  the  person  arrested  before  a  magistrate,  or  deliver  him  ta 
a  peace  officer. 

Duty  of  officer  arresting  with  warrant. 

848.  An  officer  making  an  arrest,  in  obedience  to  a  warrant, 
must  proceed  with  the  person  arrested  as  commandeu  by  the 
warrant,  or  as  provided  by  law. 

Person  arrested  without  a  warrant  to  be  taken  before  a  magis- 
trate.    Information  to  be  filed. 

849.  When  an  arrest  is  made  without  a  warrant  by  a  peace 
officer  or  private  person,  the  person  arrested  must,  without 
unnecessary  delay,  be  taken  before  the  nearest  or  most 
accessible  magistrate  in  the  county  in  which  the  arrest  is  made, 
and  an  information,  stating  the  charge  against  the  person,  must 
be  laid  before  such  magistrate. 

Arrest  by   telegraph. 

850.  A  justice  of  the  Supreme  Court,  or  a  judge  of  a  Superior 
Court,  may,  by  an  indorsement  under  h.s  hand  upon  a  warrant 
of  arrest,  authorize  the  service  thereof  by  telegraph,  and  there- 
after a  telegraphic  copy  of  such  warrant  may  be  sent  by  telegraph, 
to  one  or  more  peace  officers,  and  such  copy  is  as  effectual  in  the 
hands  of  any  officer,  and  he  must  proceed  in  the  same  manner 
under  it  as  though  he  held  an  original  warrant  issued  by  the 
magistrate  making  the  indorsement.  [Amendment  approved 
April  12,  1880;  amendments  1880,  p,  33.  In  effect  April  12th, 
1880.1 

Same. 

851.  Every  officer  causing  telegraphic  copies  of  warrants 
to  be  sent,  must  certify  as  correct,  and  file  •  in  the  telegraph 
office  from  which  such  copies  are  sent,  a  copy  of  the  warrant 
and  indorsement  thereon,  and  must  return  the  original  with  a 
statement  of  his  action  thereunder. 


641  RETAKING  AFTER  ESCAPE — EXAMINATION.         854-859' 

CHAPTER  VI. 

RETAKING  AFTER  AN  ESCAPE  OR  RESCUE. 

Sec.    854.    May  be  at  any   time  or  in  any  place  in  the  state. 

855.    May  break  open  door  or  window  if  admittance  refused. 

May  be  at  any  time  or  in  any  place  in  tlie  state. 

854.  If  a  person  arrested  escape  or  is  rescued,  the  person 
from  whose  custody  he  escaped  or  was  rescued,  may  immediately 
pursue  and  retake  him  at  any  time  and  in  any  place  within 
the  state. 

May  break  open   door  or  window  if  admittance   refused. 

855.  To  retake  the  person  escaping  or  rescued,  the  person 
pursuing  may  break  open  an  outer  or  inner  door  or  window  of  a 
dwelling  house,  if,  after  notice  of  his  intention,  he  is  refused 
admittance. 

CHAPTER  VII. 

EXAMINATION  OF  THE  CASE,   AND  DISCHARGE   OF  THE 

DEFENDANT,   OR   HOLDING   HIM   TO   ANSWER. 

See;    858.    Magistrate  to   Inform   the   defendant  of  the   charge,   and   his 
right  to  counsel. 
8.59.    Time  to  send  and  sending  for  counsel. 

860.  Examination,    when    to   proceed. 

861.  When  to  be  completed.    Ifostponement. 

862.  On   postponement,   defendant   to   be   committed   or  discharged 

on  bail. 

863.  Form   of   commitment. 

864.  Depositions  to  be  read  on  examination   and   subpoenas   issued. 

865.  Examination  of  witnesses  to  be  in  presence  of  defendant. 

866.  Examination  of  defendant's  witnesses. 

867.  Exclusion   and  separation   of  witnesses. 

868.  Who   may   be  present  at   the   examination. 

869.  Testimony,   how  taken  and   authenticated. 

870.  Deposition,  by  whom  and  how  kept. 

871.  Defendant,   when  and  how  discharged. 

872.  When  and  how  to  be  committed. 

873.  Order  for  commitment. 

875.  Order  for  bail  on  commitment. 

876.  Commitment,  how  made  and  to  whom  delivered. 

877.  Form   of   commitment. 

878.  Undertaking  of   witnesses  to  appear. 

879.  Security  for  the  appearance  of  witnesses. 

880.  Infants  and  married  women  may  be  required  to  give  security. 

881.  Witnesses  to  be  committed  on   refusal  to  give  security. 

882.  Witness  unable  to  give  security     may     be    conditionally    ex- 

amined.   Not  applicable  to  prosecutor  or  accomjjllce. 

883.  Magistrate  to  return  depositions,  etc.,  to  the  court. 

Magistrate  to  inform  the  defendant  of  the  charge,  and  his  right 
to  counsel. 

858.  When  the  defendant  is  brought  before  the  magistrate 
upon  an  arrest,  either  with  or  without  warrant,  on  a  charge  of 
having  committed  a  public  offense,  the  magistrate  must  immedi- 
ately inform  him  of  the  charge  against  him,  and  of  his  right  to 
the  aid  of  counsel  in  every  stage  of  the  proceedings. 

5.->    Cal.    »S;    56    Cal.    2.32;    59    Cal.    .'566;    66    Cal. 
595;    66    Cal.     664;     67    Cal.    232. 
105    Cal.    643. 

Time  to  send  and  sending  for  counsel. 

859.  He  must  also  allow  the  defendant  a  reasonable  time  to 
send  for  counsel,  and  postpone  the  examination  for  that  purpose, 
and  must,  upon  the  request  of  the  defendant,  require  a  peace 

CRIMES--41 


'860-867  PENAL  CODE.  64.2 

officer  to  take  a  message  to  any  counsel  in  the  township  or  city 
the  defendant  may  name.  The  officer  must,  without  delay  and 
without  fee,  perform  that  duty. 

55  Cal.    298;    66    Cal.    595;    66    Cal.    664;    67    Cal. 
232;     105    Cal.     643. 

Examination,  when  to  proceed. 

860.  If  the  defendant  requires  the  aid  of  counsel,  the  magis- 
trate must,  immediately  after  the  appearance  of  counsel,  or  if, 
after  waiting  a  reasonable  time  therefor,  none  appears,  proceed 
to  examine  the  case. 

.■■.6    Cal.    232;    66    Cal.    595;    66    Cal.    664;    67    Cal. 
232;    105    Cal.    64S. 

When  to  be  completed.     Postponement. 

861.  The  examination  must  be  completed  at  one  session, 
unless  the  magistrate,  for  good  cause  shown  by  affidavit,  post- 
pone it.  The  postponement  cannot  be  for  more  than  two  days 
at  each  time,  nor  more  than  six  days  in  all,  unless  by  consent 
or  on  motion  of  the  defendant. 

51  Cal.  287;  56  Cal.  233;  66  Cal.   596;  75  Cal.  302; 
119    Cal.    325. 

On  postponement,  defendant  to  be  committed  or  discharged  on 
bail. 

862.  If  a  postponement  is  had,  the  magistrate  must  commit 
the  defendant  for  examination,  admit  him  to  bail  or  discharge 
him  from  custody  upon  the  deposit  of  money  as  provided  in  this 
Code,  as  security  for  his  appearance  at  the  time  to  which  the 
examination  is  postponed. 

66    Cal.    596. 

Form  of  commitment. 

863.  The  commitment  for  examination  is  made  by  an  indorse- 
ment, signed  by  the  magistrate  on  the  warrant  of  arrest,  to  the 
following  effect:  "The  within  named;  A  B  having  been  brought 
before  me  under  this  warrant,  is  committed  for  examination  to 

the  sheriff  of ."  If  the  sheriff  is  not  present,  the  defendant 

may  be  committed  to  the  custody  of  a  peace  onicer. 

59    Cal.    366. 

Depositions  to  be  read  on  examination  and  subpoenas  issued. 

864.  At  the  examination,  the  magistrate  must  first  read  to 
the  defendant  the  depositions  of  the  witnesses  examined  on 
taking  the  information.  He  must  also  issue  subpoenas,  sub- 
scribed by  him,  for  witnesses  within  the  state,  required  either 
by  the  prosecution  or  the  defense. 

56  Cal.    233;    59   Cal.    366. 

Examination  of  witnesses  to  be  in  presence  of  defendant. 

865.  The  witnesses  must  be  examined  in  the  presence  of  the 
defendant,  and  may  be  cross-examined  in  his  behalf. 

56   Cal.    233;    59   Cal.    366. 

Examination  of  defendant's  witnesses. 

866.  When  the  examination  of  witnesses  on  the  part  of  the 
people  is  closed,  any  witnesses  the  defendant  may  produce  must 
be  sworn  and  examined. 

Exclusion  and  separation  of  witnesses. 

867.  While  a  witness  is  under  examination,  the  magistrate 
may  exclude  all  witnesses  who  have  not  been  examined.  He 
may  also  cause  the  witnesses  to  be  kept  separate,  and  to  be 
prevented  from  conversing  with  each  other  until  they  are  all 
examined. 


643  EXAMINATION,  DISCHARGE  OR  HOLDING.  868-869 

Who   may  be  present  at  the   examination. 

868.  The  magistrate  must  also,  upon  the  request  of  the  de- 
fendant, exclude  from  the  examination  every  person  except  his 
clerk,  the  prosecutor  and  his  counsel,  the  attorney-general,  the 
district  attorney  of  the  county,  the  defendant  and  his  counsel, 
and  the  officer  having  the  defendant  in  custody. 

115    Cal.    61. 

Testimony,  how  taken  and  authenticated. 

869.  The  testimony  of  each  witness  in  cases  of  homicide 
must  be  reduced  to  writing,  as  a  deposition,  by  the  magistrate, 
or  under  his  direction,  and  in  other  cases  upon  the  demand  of 
the  prosecuting  attorney,  or  the  defendant,  or  his  counsel.  The 
magistrate  before  whom  the  examination  is  had  may,  in  his 
discretion,  order  the  testimony  and  proceedings  to  be  taken 
down  in  shorthand  in  all  examinations  herein  mentioned,  and 
for  that  purpose  he  may  appoint  a  shorthand  reporter.  The 
deposition  or  testimony  of  the  witness  must  be  authenticated  in 
the  following  form: 

First — It  must  state  the  name  of  the  witness,  his  place  of  res- 
idence, and  his  business  or  profession. 

Second — It  must  contain  the  questions  put  to  the  witness  and  his 
answers  thereto,  each  answer  being  distinctly  read  to  him  as 
it  is  taken  down,  and  being  corrected  or  added  to  until  it  con- 
forms to  what  he  declares  is  the  truth,  except  in  cases  where 
the  testimony  is  taken  down  in  shorthand,  the  angwer  or  ans- 
wers of  the  witness  need  not  be  read  to  him. 

Third — If  a  question  put  be  objected  to  on  either  side  and  over- 
ruled, or  the  witness  declines  answering  it,  that  fact,  with  the 
ground  on  which  the  question  was  overruled  or  the  answer 
declined,  must  be  stated. 

Fourth — The  deposition  must  be  signed  by  the  witness,  or  if  he 
refuses  to  sign  it,  his  reason  for  refusing  must  be  stated  in 
writing,  as  he  gives  it,  except  in  cases  where  the  deposition  is 
taken  down  in  shorthand,  it  need  not  be  signed  by  the  witness. 

Fifth — It  must  be  signed  and  certified  by  the  magistrate  when 
reduced  to  writing  by  him,  or  under  his  direction,  and  when 
taken  down  in  shorthand,  the  transcript  of  the  reporter  appointed 
as  aforesaid,  when  written  out  in  longhand  writing,  and  cer- 
tified as  being  a  correct  statement  of  such  testimony  and  pro- 
ceedings in  the  case,  shall  be  prima  facie  a  correct  statement  of 
such  testimony  and  proceedings.  The  reporter  shall,  within 
ten  days  after  the  close  of  such  examination,  if  the  defendant 
be  held  to  answer  the  charge,  transcribe  into  longhand  writ- 
ing his  said  shorthand  notes,  and  certify  and  file  the  same  with 
the  county  clerk  of  the  county,  or  city  and  county,  in  which  the 
defendant  was  examined,  and  shall,  in  all  cases,  file  his  original 
notes  with  said  clerk. 

Sixth — The  reporter's  compensation  shall  be  fixed  by  the  magis- 
trate before  whom  the  examination  is  had,  and  shall  not  exceea 
that  now  allowed  reporters  in  the  Superior  Courts  of  this  state, 
and  shall  be  paid  out  of  the  treasury  of  the  county,  or  the  city 
and  county,  in  which  the  examination  is  had,  on  tne  certificate 
and  order  of  the  said  magistrate.     [Amendment  approved  March 


870-875  PENAL  CODE.  644 

14,  1885.    Stats.  1885,  p.  131;  repealed  conflicting  acts.    In  effe«t 
March  14th,  1885.] 

50  Cal.  96;  54  Cal.  576;  56  Cal.  231;  57  Cal.  651; 

59  Cal.  366;  frC  Cal.  86;  66  Cal.  102;  66  Cal.  664; 

66  Cal.  676;  67  Cal.  232;  68  Cal.  503;  69  Cal. 
602;  74  Cal.  393;  75  Cal.  100;  75  Cal.  302;  77 
Cal.  215;  83  Cal  364;  100  Cal.  5;  105  Cal.  656; 

106  Cal.  649;  127  Cal.  161;  127  Cal.  244;  127  Cal. 
424;  133  Cal.  333. 

Deposition,  by  whom  and  iiow  kept. 

870.  The  magistrate  or  his  clerk  must  keep  the  depositions 
taken  on  the  information  or  on  the  examination,  until  they  are 
returned  to  the  proper  court;  and  must  not  permit  them  to  be 
examined  or  copied  by  any  person  except  a  judge  of  a  court  hav- 
ing jurisdiction  of  the  offense,  or  authorized  to  issue  writs  of 
habeas  corpus,  the  attorney-general,  district  attorney,  or  other 
prosecuting  attorney,  and  the  defendant  and  his  counsel. 

66  Cal.  233;  133  Cal.   333. 

Defendant,  when  and  how  discharged. 

871.  If,  after  hearing  the  proofs,  it  appears  either  that  no 
public  offense  has  been  committed  or  that  there  is  not  sufficient 
cause  to  believe  the  defendant  guilty  of  a  public  offense,  the 
magistrate  must  order  the  defendant  to  be  discharged,  by  an 
indorsement  on  the  depositions  and  statement,  signed  by  him, 
to  the  following  effect:  "There  being  no  sufficient  cause  to 
believe  the  wi.thin  named  A  B  guilty  of  the  offense  within  men- 
tioned, I  order  him  to  be  discharged." 

133   Cal.    333. 

When  and   how  to  be  committed. 

872.  If,  however,  it  appears  from  the  examination  that  a  pub- 
lic offense  has  been  committed,  and  there  is  sufficient  cause  to 
believe  the^  defendant  guilty  thereof,  the  magistrate  must  make 
or  indorse  on  the  deposition  an  order,  signed  by  him,  to  the 
following  effect:  It  appearing  to  me  that  the  offense  in  the 
within  depositions  mentioned  [or  any  offense  according  to  the 
fact,  stating  generally  the  nature  thereof],  has  been  committed, 
and  that  there  is  sufficient  cause  to  believe  the  within  named 
A    B    guilty  thereof,  I  order  that  he  be  held  to  answer  to  the 

same,  and  committed    to    the    sheriff    of    the    county  of . 

[Amendment  approved  April  15,  1880;   amendments  1880,  p.  37. 
In  effect  April  15th,  1880.] 

49  Cal.  651;  56  Cal.  233;  67  Cal.  561;  59  Cal.  366; 

61  Cal.  379;  64  Cal.  212;  64  Cal.  261;  63  Cal.  218; 

66  Cal.  664;  67  Cal.  232;  68  Cal.  578;  69  Cal.  602; 

73  Cal.  255;  84i  Cal.  600;  So  Cal.  88;  85  Cal.  364; 

91  Cal.  26;  93  Cal.  379;  94  Cal.  499;  96  Cal.  317; 
109  Cal.  449.  133  Cal.  334. 

Order  for  commitment. 

873.  If  the  offense  is  not  bailable,  the  following  words  must 
be  added  to  the  indorsement:  "And  he  is  hereby  committed  to 
the  sheriff  of  the  county  of ." 

49    Cal.     651. 

Order  for  bail   on  commitment. 

875.  If  the  offense  is  bailable,  and  the  defendant  is  admitted 
to  bail,  the  following  words  must  be  added  to  the  order,  "and 

that  he  be  admitted  to  bail  in  the  sum  of  dollars,  and  is 

committed  to  the  sheriff  of  the  county  of  until  he  gives 


645  EXAMINATION,  DISCHARGE  OR  HOLDING.  876-882 

such  bail."     [Amendment  approved  April  15,  1880;  amendments 
1880,  37.     In  effect  April  15th,  '1880.] 

49    Cal.     651;     84    Cal.     601. 

Commitment,  how  made  and  to  whom  delivered. 

876.  If  the  magistrate  order  the  defendant  to  be  committed, 
he  must  make  out  a  commitment,  signed  by  him,  with  his  name 
of  office,  and  deliver  it,  with  the  defendant,  to  the  officer  to 
whom  he  is  committed,  or,  if  that  officer  is  not  present,  to  a 
peace  officer,  who  must  deliver  the  defendant  into  the  proper 
custody,  together  with  the  commitment. 

.     49   Cal.    651;    116   Cal.    506. 

Form  of  commitment. 

877.  The  commitment  must  be  to  the  following  effect: 
County  of  [as  the  case  may  be]. 

The  people  of  the  state  of  California  to  thei  sheriff  of  the  county 
of : 

An  order  having  been  this  day  made  by  me,  that  A  B  be 
held  to  answer  upon  a  charge  of  [stating  briefly  the  nature  of 
the  offense,  and  giving  as  near  as  may  be  the  time  when  and 
the  place  where  the  same  was  committed],  you  are  commanded 
to  receive  him  into  your  custody  and  detain  him  until  he  is 
legally  discharged. 

Dated  this  —  day  of  ,  eighteen  . 

49   Cal.    651;    68    Cal.    57S;    85   Cal.    364;    116    Cal.  506. 

Undertaking  of  witnesses  to  appear. 

878.  On  holding  the  defendant  to  answer,  the  magistrate  may 
take  from  each  of  the  material  witnesses  examined  before  him 
on  the  part  of  the  people  a  written  undertaking,  to  the  effect 
that  he  will  appear  and  testify  at  the  court  to  which  the 
depositions  and  statements  are  to  be  sent,  or  that  he  will  forfeit 
the  sum  of  five  hundred  dollars. 

61   Cal.    58;    S4   Cal.    603. 

Security  for  the   appearance   of  witnesses. 

879.  When  the  magistrate  or  a  judge  of  the  court  in  which 
the  action  is  pending  is  satisfied,  by  proof  on  oath,  that  thei'e 
is  reason  to  believe  that  any  such  witness  will  not  appear  and 
testify  unless  security  is  required,  he  may  order  the  witness 
to  enter  into  a  written  undertaking,  with  sureties,  in  such  sum 
as  he  may  deem  proper,  for  his  appearance  as  specified  in  the 
preceding  section. 

84    Cal.     604. 

Infants  and  married  women  may  be  required  to  give  security. 

880.  Infants  and  married  women,  who  are  material  wit- 
vcss  against  the  defendant,  may  be  required  to  procure  sure- 
ties for  their  appearance,   as  provided   in  the  last  section. 

Witnesses  to  be  committed  on  refusal  to  give  security. 

881.  If  a  witness,  required  to  enter  into  an  undertaking  to 
appear  and  testify,  either  with  or  without  sureties,  refuses  com- 
pliance with  the  order  for  that  purpose,  the  magistrate  must 
commit  him  to  prison  until  he  complies  or  is  legally  discharged. 

61    Cal.    59. 

Witnesses  unable  to  give  security  may  be  conditionally  examined. 
Not  applicable  to  prosecutor  or  accomplice. 

882.  When,  however,  it  satisfactorily  appears  by  examination, 
on  oath,  of  the  witness,  or  any  other  person,  thai,  the  witness 


883-890  PENAL  CODE.  646 

Is  unable  to  procure  sureties,  he- may  be  forthwith  conditionally 
examined  on  behalf  of  the  people.  Such  examination  must  be 
by  question  and  answer,  in  the  presence  of  the  aefendant.  or 
after  notice  to  him,  if  on  bail,  and  conducted  in  the  same  man- 
ner as  the  examination  before  a  committing  magistrate  is 
required  by  this  code  to  be  conducted,  and  the  witness  there- 
upon be  discharged;  but  this  section  does  not  apply  to  an 
accomplice  in  the  commission  of  the  offense  charged.  [Amend- 
ment approved  March  14,  1878;  amendments  1877-8,  122.  In 
.ieflect  March   14th,   1878.] 

49    Cal.    37;    64   Cal.    86;    84   Cal.    604. 

Magistrate  to   return  depositions,   etc.,  to  a  court. 

883.  When  a  magistrate  has  discharged  a  defendant,  or  has 
held  him  to  answer,  he  must  return,  without  delay,  to  the  clerk 
of  the  court  at  which  the  defendant  is  required  to  appear,  the 
warrant,  if  any,  the  depositions,  and  all  undertakings  of  bail, 
or  for  the  appearance  of  witnesses    taken  by  him. 

66   Cal.    664;    67   Cal.    232;    109   Cal.    449;    113   Cal. 
285;    133   Cal.    333. 


TITLE  IV. 

OF  PROCEEDINGS  AFTER  COMMITMENT  AND  BEFORE  IN- 
DICTMENT. 

Chapter  I.  Preliminary  provisions,  sections  888-90. 

II.  Formation  of  the  grand  jury,  sections  894-910. 

III.  Powers  and  duties  of  a  grand  jury,  sections  915-i.<i. 

IV.  Presentment     and     proceedings     thereon,     sections 

931-7. 

CHAPTER  I. 
PRELIMINARY   PROVISIONS. 

Sec.    888.    Offenses,  how  prosecuted. 

889.  .What  by  accusation  or  information. 

890.  Indictments  and  accusations,   in   what  court  found. 

Offenses,  how  prosecuted. 

888.  All  public  offenses  triable  in  the  Superior  Courts  must  be 
prosecuted  by  indictment  or  information,  except  as  provided  In 
the  next  section.  [In  effect  April  9th,  1880;  Amendments,  1880, 
p.  12.] 

57    Cal.    561;    59    Cal.    245;    85    Cal.    88;    111   Cal     239. 

What  by  accusation  or  information. 

889.  When  the  proceedings  are  had  for  the  removal  of  dis- 
trict, county,  municipal,  or  township  ofBcers,  they  may  be  com- 
menced by  an  accusation  or  information,  in  writing,  as  pro- 
vided in  sections  758  and  772, 

59  Cal.   245;   97  Cal.    3S2;  111  Cal.   239.  !v 

Indictments  and   accusations,   in   wliat   court  found. 

890.  All  accusations,  informations,  or  indictments  against  dis- 
trict, county,  municipal,  and  township  officers,  must  be  found 
or  filed  in  the  Superior  Court.  [Amendment  approved  April  12,. 
1880;  amendments  1880,  34.    In  effect  April  12th,  1880.] 


647  FORMATION  OF  GRAND  JURY.  894-896 

CHAPTER  II. 
FORMATION    OF    THE    GRAND    JURY. 

Sec.    894.  Who   may  challenge   the  panel   or   an   individual  juror. 

895.  Cause  of  challenge  to  a  panel. 

896.  Cau.se  of  challenge  to  an  individual  grand  juror. 

897.  Manner  of  taking  and  trying  challenges. 

898.  Decision   upon   challenges. 

899.  Effect  of  allowing  a  challenge  to  a  panel. 

900.  Effect  of  allowing  a  challenge  to  an  individual  juror. 

901.  Objections  can   only   be  taken  by  challenge. 

902.  Appointment  of  a  foreman. 

903.  Oath  of  foreman. 

904.  Oath  of  other  grand  jurors. 

905.  Charge   of  the   court. 

906.  Retirement    of    the    grand    jury.    Discharge    of. 

907.  Special  grand  jury. 

908.  Order  for  special   grand  jury. 

909.  Order,  how  executed. 

910.  Special  grand  jui-y,  how  formed. 

Who  may  challenge  the  panel  or  an  individual  juror. 

894.  The  people,  or  a  person  held  to  answer  a  charge  for  a 
public  offense,  may  challenge  the  panel  of  a  grand  jury,  or  an 
individual  juror. 

Cause  of  challenge  to  a  panel. 

895.  A  challenge  to  the  panel  may  be  interposed  for  one  or 
more  of  the  following  causes  only: 

1.  That  the  requisite  number  of  ballots  was  not  drawn  from 
the  jury-box  of  the  county; 

2.  That  notice  of  the  drawing  of  the  grand  jury  was  not 
given; 

3.  That  the  drawing  was  not  had  in  the  presence  of  the 
officers  designated  by  law. 

119    Cal.    3. 

Cause  of  challenge  to  an  individual  grand  j'uror. 

896.  A  challenge  to  an  individual  grand  juror  may  be  inter- 
posed for  one  or  more  of  the  following  causes  only: 

First — That  he  is  a  minor. 

Second — That  he  is  an  alien. 

Third — That  he  is  insane. 

Fourth — That  he  is  a  prosecutor  upon  a  charge  against  the  de- 
fendant. 

Fifth — That  he  is  a  witness  on  the  part  of  the  prosecution,  and 
has  been  served  with  process  or  bound  by  an  undertaking  as 
such. 

Sixth — That  a  state  of  mind  exists  on  his  part  in  reference  to 
the  case,  or  to  either  party,  which  will  prevent  him  from  acting 
impartially  and  without  prejudice  to  the  substantial  rights  of 
the  party  challenging;  but  no  person  shall  be  disqualified  as  a 
juror  by  reason  of  having  formed  or  expressed  an  opinion  upon 
the  matter  or  cause  to  be  submitted  to  such  jury,  founded  upon 
public  rumor,  statements  in  public  journals,  or  common 
notoriety,  provided  it  satisfactorily  appear  to  the  court  upon 
his  declaration,  under  oath  or  otherwise,  that  he  can  and  will, 
notwithstanding  such  an  opinion,  act  impartially  and  fairly  upon 
the  matters  to  be  submitted  to  him.  [Amendment  approvea 
March  30th,  1874;  amendments  1873-4,  436.  In  effect  July  1st, 
1874.] 

61    Cal.    165;    76    Cal.    344. 


897-903  PENAL  CODE.  648 

Manner  of  taking  and  trying  chaiienges. 

897.  The  challenges  mentioned  in  the  last  three  sections  may 
be  oral  or  in  writing,  and  must  be  tried  by  the  court.  [Amend- 
ment approved  March  30th;  amendments  1873-4,  436.  In  effect 
July  1st,  1874.] 

Becision   upon  challenges. 

898.  The  court  must  allow  or  disallow  the  challenge,  and  the 
clerk  must  enter  its  decisions  upon  the  minutes. 

Effect  of  allowing  a  challenge  to  a  panel. 

899.  If  a  challenge  to  the  panel  is  allowed,  the  grand  jury 
are  prohibited  from  inquiring  into  the  charge  against  the  defend- 
ant, by  whom  the  challenge  was  interposed.  If,  notwithstanding, 
they  do  so,  and  find  an  indictment  against  him,  the  court  must 

>iirect  it  to  be  set  aside. 

liffect  of  allowing  a  challenge  to  an   individual  juror. 

900.  If  a  challenge  to  an  individual  grand  juror  is  allowed, 
lie  cannot  be  present  or  take  part  in  the  consideration  of  the 
iiharge  against  the  defendant  who  interposed  the  challenge, 
i)r  the  deliberations  of  the  grand  jury  thereon.  The  grand  jury 
must  inform  the  court  of  a  violation  of  this  section,  and  it  Is 
punishable  by  the  court  as  a  contempt. 

54    Cal.    39;    S8    Cal.    235. 

Objections  can   only  be  taken   by  challenge. 

901.  A  person  held  to  answer  to  a  charge  for  a  public  offense 
can  take  advantage  of  any  objection  to  the  panel  or  to  an 
individual  grand  juror  in  no  other  mode  than  by  challenge. 

Appointment  of  a  foreman. 

902.  From  the  persons  summoned  to  serve  as  grand  jurors 
and  appearing,  the  court  must  appoint  a  foreman.  The  court 
must  also  appoint  a  foreman  when  the  person  already  appointed 
is  excused  or  discharged  before"  the  grand  jury  is  dismissed. 

Oath  of  foreman. 

903.  The  following  oath  must  be  administered  to  the  foreman 
of  the  grand  jury:  "You,  as  foreman  of  the  grand  jury,  will 
diligently  inquire  into,  and  true  presentment  make,  ol  all  public 
offenses  against  the  people  of  this  state,  committed'  or  triauiS 
within  this  county,  of  which  you  shall  have  or  can  obtain  legal 
evidence.  You  will  keep  your  own  counsel,  and  that  of  your 
fellows  and  of  the  government,  and  will  not,  except  when 
required  in  the  due  course  of  judicial  proceedings,  disclose  the 
testimony  of  any  witness  examined  before  you,  nor  any  thing 
which  you  or  any  other  grand  juror  may  have  said,  nor  the 
manner  in  which  you  or  any  other  grand  juror  may  have  voted 
on  any  matter  before  you.  You  will  present  no  person  through 
malice,  hatred,  or  ill-will,  nor  leave  any  unpresented  through 
fear,  favor,  or  affection,  or  for  any  reward,  or  the  promise  or 
hope  thereof;  but  in  all  your  presentments  you  will  present 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  according 
to  the  best  of  your  skill  and  understanding,  so  help  you  God." 
[Amendment  approved  March  30th,  1874;  amendments  1873-4, 
437.     In  effect  July   1st,  1874.] 

64  Cal.   527. 


649  FORMATION  OF  GRAND  JURY.  904-910 

Oath  of  other  grand  Jurors. 

904.  The  following  oath  must  be  immediately  thereupon 
administered  to  the  other  grand  jurors  present:  "The  same  oath 
which  your  foreman  has  now  taken  before  you  on  his  part,  you 
and  each  of  you  shall  well  and  truly  observe  on  your  part,  so 
held  you  God." 

Charge  of  the  court. 

905.  The  grand  jury  being  impaneled  and  sworn,  must  be 
charged  by  the  court.  In  doing  so,  the  court  must  give  them  such 
information  as  it  may  deem  proper,  or  as  is  required  by  law,  as 
to  their  duties,  and  as  to  any  charged  for  public  offenses 
returned  to  the  court  or  likely  to  come  before  the  grand  jury. 

Retirement  of  the  grand  jury.     Discharge  of. 

906.  The  grand  jury  must  then  retire  to  a  private  room  and 
inquire  into  the  offenses  cognizable  by  them.  On  the  com- 
pletion of  the  business  before  them,  they  must  be  discharged 
by  the  court;  but,  whether  the  business  is  completed  or  not, 
they  are  discharged  by  the  final  adjournment  of  the  court. 

69    Cal.    547. 

Special    grand   jury. 

907.  If  an  offense  is  committed  during  the  sitting  of  the 
court,  after  the  discharge  of  the  grand  jury,  the  court  may,  in 
its  discretion,  direct  an  order  to  be  entered  that  the  sheriff 
summon   another   grand   jury. 

54    Cal.    39. 

Order  for  special  grand  Jury. 

908.  The  order  must  require  the  sheriff  to  summon  at  least 
nineteen  (19)  persons,  qualified  to  serve  as  grand  jurors,  to  ap- 
pear at  a  time  specified,  and  a  copy  thereof,  under  the  seal  of  the 
court,  must  by  the  clerk  be  delivered  to  the  sheriff.  [Amend- 
ment approved  March  16,  1889;  stats.  1889,  214.  In  effect  March 
16,  1889.] 

Order,  how  executed. 

909.  The  sheriff  must  execute  the  order  and  return  it,  with  a 
list  of  names  of  the  persons  summoned. 

Special  grand  jury,  how  formed. 

910.  At  the  time  appointed  the  list  must  be  called  over,  and 
the  names  of  those  in  attendance  be  written  by  the  clerk  on 
separate  ballots  and  put  into  a  box,  from  which  a  grand  jury 
must  be  drawn. 


916-920  PENAL  CODE.  650 

CHAPTER  III. 
POWERS    AND    DUTIES    OF    A    GRAND    JURY. 

Sec.    915.  Powers  of  grand  jury. 

916.  Presentment  defined. 

917.  Indictment  defined. 

918.  E'oreman  may  administer  oaths. 

919.  Evidence  receivable  liefore  the  grand  jury. 

920.  Grand  jury  not  bound  to  hear  evidence  for  the  defendant. 

921.  Degree  of  evidence  to  warrant  Indictment. 

922.  Grand  Jurors  must  declare  their  knowledge  as  to  commission 

of  public  offense. 

923.  Must  inquire  into   cases  of  persons  imprisoned,   etc. 

924.  Entitled  to  access  to  public  prison,   etc. 

925.  When  and  from   whom  they   may  ask  advice,  and   who  may 

be   present   during  their  sessions. 

926.  Secrets  of  grand  jury  to  be  kept,  except,  etc. 

927.  Grand  juror  not  to  be  questioned  for  his  conduct,  except,  etc. 

928.  Duties   of   grand  jury. 

929.  Grand  jury  may  order  district  attorney  to  bring  suit  to  recove^ 

moneys  due  the  county. 

Powers  of  grand  jury. 

915.  The  grand  jury  must  inquire  into  all  public  offenses 
committed  or  triable  within  the  county,  and  present  them  to 
the  court,  either  by  presentment  or  by  indictment. 

60    Cal.     105;    77    Cal.     627. 

Presentment  defined. 

916.  A  presentment  is  an  informal  statement  in  writing,  by 
the  grand  jury,  representing  to  the  court  that  a  public  offense  has 
been  committed  which  is  triable  in  the  county,  and  that  there 
is  reasonable  ground  for  believing  that  a  particular  individual 
named  or   described  therein   has   committed   it. 

109     Cal.     447. 

Indictment  defined. 

917.  An  indictment  is  an  accusation  in  writing,  presented  by 
the  grand  jury  to  a  competent  court,  charging  a  person  with  a 
public  offense. 

Foreman   may  administer  oatlis. 

918.  The  foreman  may  administer  an  oath  to  any  witness 
appearing  before  the  grand  jury. 

Evidence    receivable    before   the    grand   jury. 

919.  In  the  investigation  of  a  charge  for  the  purpose  of  either 
presentment  or  indiqtment,  the  grand  jury  can  receive  no  other 
evidence  than  such  as  is  given  by  witnesses  produced  and  swbrn 
before  them,  or  furnished  by  legal  documentary  evidence,  or  the 
deposition  of  a  witness  in  the  cases  mentioned  in  the  third  sub- 
division of  section  686.  The  grand  jury  can  receive  none  but 
legal  evidence,  and  the  best  evidence  in  degree,  to  the  exclusion 
of  hearsay  or  secondary  evidence. 

Grand  jury  not  bound  to  hear  evidence  for  the  defendant. 

920.  The  grand  jury  is  not  bound  to  hear  evidence  for  the 
defendant;  but  it  is  their  duty  to  weigh  all  the  evidence  submit- 
ted to  them,  and  wh^n  they  have  reason  to  believe  that  other 
evidence  within  their  reach  will  explain  away  the  charge,  they 
should  order  such  evidence  to  be  produced,  and  for  that  purpose 
may  require  the  district  attorney  to  issue  process  for  the  wit- 
nesses. 

64    Ca!.    437;    64   Cal.    527;    76    Cal.    345;    116   Cal. 
391;    119    Cal.     457. 


651  POWERS  AND  DUTIES  OF  GRAND  JURY.  921-926 

Degree  of  evidence  to  warrant  indictment. 

921.  The  grand  jury  ought  to  find  an  indictment  when  all 
the  evidence  before  them,  taken  together,  if  unexplained  or 
uncontradicted,  would,  in  their  judgment,  warrant  a  conviction 
by  a  trial  jury. 

Grand  jurors  must  declare  their  knowledge  as  to  commission  of 
public  offense. 

922.  If  a  member  of  a  grand  jury  knows,  or  has  reason  to 
believe,  that  a  public  offense,  triable  within  the  county,  has  been 
committed,  he  must  declare  the  same  to  his  fellow  jurors,  who 
must  thereupon  investigate  the  same. 

Must   inquire    into   cases   of   persons   imprisoned,   etc. 

923.  The  grand  jury  must  inquire  into  the  case  of  every  per- 
son imprisoned  in  the  jail  of  the  county  on  a  criminal  charge 
and  not  indicted;  into  the  condition  and  management  of  the 
public  prisons  within  the  county;  and  into  the  wilful  and  cor- 
rupt misconduct  in  office  of  public  officers  of  every  description 
within  the  county. 

49    Cal.    651. 

Entitled  to  access  to  public  prison,  etc. 

924.  They  are  also  entitled  to  free  access,  at  all  reasonable 
times,  to  the  public  prisons,  and  to  the  examination,  without 
charge,  of  all  public  records  within  the  county. 

When   and  from  whom   they  may  ask  advice,  and  who  may  be 
present  during  their  sessions. 

925.  The  grand  jury  may,  at  all  times,  ask  the  aavice  of  the 
court,  or  the  judge  thereof,  or  of  the  district  attorney;  but 
unless  such  advice  is  asked,  the  judge  of  the  court  must  not  be 
present  during  the  sessions  of  the  grand  jury.  The  district  attor- 
ney of  the  county  may  at  all  times  appear  before  the  grand  jury 
for  the  purpose  of  giving  information  or  advice  relative  to  any 
matter  cognizable  by  them,  and  may  interrogate  witnesses  before 
them  whenever  he  thinks  it  necessary.  The  grand  jury,  on  the 
demand  of  the  district  attorney,  whenever  criminal  causes  are 
being  investigated  before  them,  must  appoint  a  competent  steno- 
graphic reporter  to  report  the  testimony  that  may  be  given  in 
such  causes  in  shorthand,  and  reduce  the  same  afterward,  upon 
the  request  of  the  said  district  attorney,  to  longhand;  a  copy 
of  the  said  testimony  so  taken  must  be  delivered  to  the  defend- 
ant in  any  such  criminal  cause  upon  the  arraignment  after 
indictment  of  the  said  defendant;  the  services  of  the  said 
stenographic  reporter  is  hereby  constituted  a  charge  against 
the  county  wherein  the  said  grand  jury  may  be  impaneled.  No 
other  person  other  than  above  specified  is  permitted  to  be  present 
during  the  session  of  the  grand  jury,  except  the  members  and 
witnesses  actually  under  examination,  and  no  person  must  be 
permitted  to  be  present  during  the  expression  of  their  opinions, 
or  giving  their  votes  upon  any  matter  before  them.  [Amend- 
ment approved  March  27,  1897;  stats.  1897,  p.  204.  In  effect 
immediately.]  t 

71    Cal.     213;     116    Cal.    390;    132    Cal.     200. 

Secrets  of  grand  jury  to  be  kept,  except,  etc. 

926.  Every  member  of  the  grand  jury  must  keep  secret  what- 
ever he  himself  or  any  other  grand  juror  may  have  said,  or  itt 


927-929  PENAL  CODE.  652 

what  manner  he  or  any  other  grand  juror  may  have  voted  on  a 
matter  before  them;  but  may,  however,  be  required  by  any 
court  to  disclose  the  testimony  of  a  witness  examined  before  the 
grand  jury,  for  the  purpose  of  ascertaining  whether  it  is  con- 
sistent with  that  given  by  the  witness  before  the  court,  or  to 
disclose  the  testimony  given  before  them  by  any  person,  upon 
a  charge  against  such  person  for  perjury  in  giving  his  testimonj 
or  upon  trial  therefor. 

64   Cal.    527;    77    Cal.    633. 

Grand  Juror  not  to  be  questioned  for  his  conduct,  except,  etc. 

927.'  A  grand  juror  cannot  be  questioned  for  anything  he  may 
say  or  any  vote  he  may  give  in  the  grand  jury  relative  to  a 
matter  legally  pending  before  the  jury,  except  for  a  perjury 
of  which  he  may  have  been  guilty,  in  making  an  accusation  or 
giving  testimony  to  his  fellow  jurors. 

56    CaJ.    67. 

Duties  of  grand  jury. 

928.  It  shall  be  the  duty  of  the  grand  jury  annually  to  make 
a  careful  and  complete  examination  of  the  books,  records,  and 
accounts  of  all  the  officers  of  the  county,  and  especially  those 
pertaining  to  the  revenue,  and  report  as  to  the  facts  they  have 
found,  with  such  recommendations  as  they  may  deem  proper 
and  fit;  and  if,  in  their  judgment,  the  services  of  an  expert  are 
necessary,  they  shall  have  power  to  employ  one,  at  an  agreed 
compensation,  not  to  exceed  five  dollars  per  day,  payable  as 
other  county  charges.  The  judge,  on  impanelment  of  such  grand 
jury,  shall  charge  them  specially  as  to  their  duties  under  this 
section;  provided,  that  if  any  grand  jury  shall,  in  the  report 
above  mentioned,  comment  upon  any  person  or  oSicial  who  has 
not  been  indicted  by  the  said  grand  jury,  the  said  comments 
shall  not  be  deemed  to  be  privileged.  [Amendment,  approved 
March  27,  1897;  stats.  1897,  p.  205.    In  effect  immediately.] 

Grand  jury  may  order  district  attorney  to  bring  suit  to  recover 
moneys  due  the  county. 

929.  The  grand  jury,  after  having  investigated  the  books  and 
accounts  of  the  various  oflicials  of  the  county,  as  in  the  fore- 
going section  provided,  may  order  the  district  attorney  of  the 
said  county  to  institute  suit  to  recover  any  moneys  that,  in  the 
judgment  of  the  said  grand  jury,  may  from  any  cause  be  due  the 
county,  and  the  order  of  the  said  grand  Jury,  certified  by  the 
foreman  of  the  said  grand  jury,  filed  with  the  county  clerk  of 
the  said  county,  shall  be  full  authority  for  the  said  district 
attorney  to  institute  and  maintain  any  such  suit.  [New  sec- 
tion added  March  27,  1897;  stats.  1897,  p.  205.  In  effect  imme- 
diately.] 

133   Cal.    348. 


653  PRESENTMENT  AND  PROCEEDINGS.  931-93T 

CHAPTER  IV. 

PRESENTMENT.  AND  PROCEEDINGS  THEREON. 

Sec.    931.  Presentment  must  be  by  twelve  grand  jurors,  etc. 

932.  Must  be  presented  to  the  court  and  filed. 

938.  Court    must    direct    a    bench  warrai^t    If    facts    constitute    a 
public  offense. 

934.  Bench  warrant,  by  whom  and  how  issued. 

935.  Form  of  bench  warrant. 

936.  Bench  warrant,   how  served. 

937.  Proceedings  of  magistrate  on  defendant  being  brought  before 

him. 
Presentment  must  be  by  twelve  grand  jurors,  etc. 

931.  A  presentment  cannot  be  found  without  the  concurrence 
of  at  least  twelve  grand  jurors.  When  so  found  it  must  be 
signed  by  the  foreman. 

54    Cal.    IM.- 

Must  be  presented  to  the  court  and  filed. 

932.  The  presentment,  when  found,  must  be  presented  by  the 
foreman,  in  presence  of  the  grand  jury,  to  the  court,  and  must 
be  filed  with  the  clerk. 

Court  must  direct  a  bench  warrant  if  facts  constitute  a  public 
offense. 

933.  If  the  facts  stated  in  the  presentment  constitute  a  public 
offense,  triable  in  the  county,  the  court  must  direct  the  clerK 
to  issue  a  bench  warrant  for  the  arrest  of  the  defendant. 

Bench  warrant,  by  whom  and  how  issued. 

934.  The  clerk,  on  the  application  of  the  judge  or  district 
attorney,  may  accordingly,  at  any  time  after  the  order,  whether 
the  court  be  sitting  or  not,  issue  a  bench  warrant,  under  his 
signature  and  the  seal  of  the  court,  into  one  or  more  counties. 

Form  of  bench  warrant. 

935.  The  bench  warrant,  upon  presentment,  must  be  sub- 
stantially in  the  following  form:     County  of .    The  people 

of  the  state  of  California  to  any  sheriff,  constable,  marshal,  or 
policeman  in  this  state:     A  presentment  having  been  made  on 

the  —  day  of ,  eighteen  ,  to  the  Superior  Court  of  the 

county  of  ,    charging    C    D  with    the    crime    of  , 

[designating  it  generally]  you  are  therefore  commanded  forth- 
with to  arrest  the  above  named  C  D  ,  and  to  take  him  before 
E  F,  a  magistrate  of  this  county;  or,  in  case  of  his  absence 
or  inability  to  act,  before  the  nearest  and  most  accessible 
magistrate  in  this  county.    Given  under  my  hand,  with  the  seal 

of  said  court  affixed,  this  —  day  of ,  A.  D.  eighteen  . 

By  order  of  the  court.  [Seal.]  G  H,  clerk.  [In  effect  April 
12th,  1880;   stats.  1880,  p.  34.] 

Bench  warrant,  how  served. 

936.  The  bench  warrant  may  be  served  in  any  county,  and  the 
officer  serving  it  must  proceed  thereon  as  upon  a  warrant  of 
arrest  on  an  information,  except  that  when  served  in  another 
county,  it  need  not  be  indorsed  by  a  magistrate  of  that  county. 

54    Cal.    10\  J 

Proceedings   of   magistrate    on    defendant   being   brought   before 
him. 

937.  The  magistrate,  when  the  defendant  is  brought  before 
him,  must  proceed  upon  the  charges  contained  in  the  present- 
ment, in  the  same  manner  as  upon  a  warrant  of  arrest  on  an 
information. 


940-945  PENAL  CODE.  664 

TITLE  V. 

OF   THE   INDICTMENT. 

Chapter  I.    Finding   and    presentment   of   the   indictment,   sec- 
tions 940-945. 
II.    Rules  of  pleading  and  form  of  the  indictment,  sec- 
tions   948-972. 

CHAPTER  I. 

FINDING   AND   PRESENTMENT   OF   THE   INDICTMENT. 

Sec.    !t40.  Indictment  must  be  found  by  twelve  jurors,   Indorsed,  etc. 

041.  If   not   found,    depositions,    etc ,    must   be   returned    to    court, 

etc. 

942.  Effect  of  dismissal. 

fl43.  Names  of   witnesses   Inserted  at  foot  of  Indictment. 

044  Indictment,  how  presented  and  filed. 

045.  Proceedings  when  defendant  Is  not  In  custody. 

Indictment   must  be  found   by  twelve  jurors,   indorsed,  etc. 

940.  An  indictment  cannot  be  found  without  the  concurrence 
of  at  least  twelve  grand  jurors.  When  so  found  it  must  be 
indorsed,  "A  true  bill,"  and  the  indorsement  must  be  signed  by 
the  foreman  of  the  grand  jury. 

54    Cal.    38. 

If  not  found,  depositions,  etc.,  must  be  returned  to  court,  etc. 

941.  If  twelve  grand  jurors  do  not  concur  in  finding  an  indict- 
ment against  a  defendant  who  has  been  held  to  answer,  the 
depositions  and  statement,  if  any,  transmitted  to  them  must  be 
returned  to  the  court,  with  an  indorsement  thereon,  signed  by 
the  foreman,  to  the  effect  that  the  charge  is  dismissed. 

54   Cal.    38;    54    Cal.    413. 

Effect  of  dismissal. 

942.  The  dismissal  of  the  charge  does  not  prevent  its  resub- 
mission to  a  grand  jury  as  often  as  the  court  may  direct.  But 
without  such  direction  it  cannot  be  resubmitted. 

54  Cal.   411;    65   Cal.   218. 

Names  of  witnesses  inserted  at  foot  of  indictment. 

943.  When  an  indictment  is  found,  the  names  of  the  wit- 
nesses examined  before  the  grand  jury,  or  whose  depositions 
may  have  been  read  before  them,  must  be  inserted  at  the  foot 
of  the  indictment,  or  indorsed  thereon,  before  it  is  presented 
to  the  court. 

54  Cal.  103;  56  Cal.  28;  71  Cal.  213;  104  Cal.  877; 
130    Cal.    75. 

Indictment,  Iiow  presented  and  filed. 

944.  An  indictment,  when  found  by  the  grand  jury,  must  be 
presented  by  their  foreman,  in  their  presence,  to  the  court,  and 
must  be  filed  with  the  clerk. 

34    Cal.     38. 

Proceedings  when  defendant   is  not  in  custody. 

945.  When  an  indictment  is  found  against  a  defendant  not  in 
custody,  the  same  proceedings  must  be  had  as  are  prescribed  In 
sections  979  to  984,  inclusive,  against  a  defendant  who  fails  to 
appear  for  arraignment. 


655  RULES  OF  PLEADING  AND  INDICTMENT.  948-951 

CHAPTER  II. 
RULES   OF   PLEADING  AND   FORM   OF  INDICTMENT. 

Sec.    948.  Form  of  and  rules  of  pleading. 

949.  BMrst  pleading  by  the  people  Is  Indictment,  or  Information. 

950.  Indictment  or  Information,  what  to  contain. 

951.  Form  of. 

952.  It  must  he  direct  and  certain. 

953.  When  defendant  is  indicted  by  ttctltlous  name,  etc. 

954.  Must  charge  lint  one  offense  and  in  one  form,  except  where 

It  may  be  committed  by  different  means. 

955.  Statement  as  to  time  when  offense  was  committed. 

956.  Statement  as  to  person  injured  or  intended  to  be. 

957.  Construction  of   words  used. 

958.  Words  used  in  a  statute  need  not  be  strictly  pursued. 

959.  Indictment  or  information,  when  sufficient. 

960.  Not  insufficient  for  defect  of  form  not  tending  to  prejudice 

defendant. 

961.  Presumptions  of  law,  etc.,  need  not  be  stated. 

962.  Judgments,  etc.,  how  pleaded. 

963.  Private  statutes,  how  pleaded. 

964.  Pleading  for  libel. 

965.  Pleading  for  forgery,  where    instrument     has     been   destroyed 

or  withheld  by   defendant. 

966.  Pleading  for  perjury  or  subornation  of  perjury. 

967.  Pleading  for  larceny  or  embezzlement. 

968.  Pleading  for  selling,  exhibiting,  etc.  lewd  and  obscene  books. 

970.  Indictment   against    several,    one   or    more    may   be   acquitted. 

971.  Distinction  between   accessory  before  the  fact  and  principal 

aljrogated. 

972.  Accessory  may  be  Indicted  and  tried,  though  principal  has  not 

been. 

Form  of  and  rules  of  pleading. 

948.  All  the  forms  of  pleading  in  criminal  actions,  and  the 
rules  by  which  the  sufficiency  of  pleadings  is  to  be  determined, 
are  those  prescribed  by  this  code. 

59    Cal.    377;    90    Cal.    571. 

First  pleading  by  the  people  is  indictment,  or  information. 

949.  The  first  pleading  on  the  part  of  the  people  is  the  indict- 
ment or  information.  [Amendment  approved  April  9,  1880; 
amendments   1880,   p.   12.     In  effect  April   9,   1880.] 

57    Cal.    561;    S5    Cal.    S8. 

Indictment,  or  Information,  what  to  contain. 

950.  The  indictment  or  information  must  contain: 

1.  The  title  of  the  action,  specifying  the  name  of  the  court 
to  which  the  same  is  presented,  and  the  names  of  the  parties; 

2.  A  statement  of  the  acts  constituting  the  offense,  in  ordi- 
nary and  concise  language,  and  in  such  manner  as  to  enable  a 
person  of  common  understanding  to  know  what  is  intended. 
[Amendment  approved  April  9,  1880;  amendments  1880,  p.  12. 
In  effect  April  9,  1880.] 

49  Cal.  388;  53  Cal.  616;  58  Cal.  107;  58  Cal.  225;  ■ 
59  Cal.  .•574;  59  Cal.  398;  64  Cal  1.54;  64  Cal.  261; 
66  Cal.  229;  66  Cal.  673;  67  Cal.  104;  70  Cal.  99; 
70  Cal.  117;  70  Cal.  524;  72  Cal.  259;  77  Cal.  149; 
78  Cal.  87;  81  Cal.  159;  82  Cal.  608;  84  Cal.  471; 
85  Cal.  645;  86  Cal.  239;  91  Cal.  466;  92  Cal.  651; 
94  Cal.  597;  100  Cal.  439;  102  Cal.  241;  103  Cal. 
676;  106  Cal.  407:  110  Cal.  371;  112  Cal.  19; 
116  Cal.  391;  118  Cal.  76;  119  Cal.  457;  127  Cal. 
100;  ISO  Cal.  14;  131  Cal.  249. 

Form  of. 

951.  It  may  be  substantially  in  the  following  form:  The  peo- 
ple of  the   state   of   California  against  A    B  ,   in  the   Superior 


952-955  PENAL  CODE.  656 

Court  of  the  county  of ,  the  —  day  of ,  A.  D.  eighteen 

.     A    B    Is  accused   by  the  grand  jury  of  the  county  of 

,  by  this  indictment,  [or  by  the  district  attorney  by  this 

information)  of  the  crime  of  [giving  its  legal  appellation,  such 
as  murder,  arson,  or  the  like,  or  designating  it  as  felony  or 
misdemeanor],   committed  as  follows:     The   said  A    B ,  on  the 

—  day  of  A.  D.  eighteen  ,  at  the  county  of  

[here  set  forth  the  act  or  omission  charged  as  an  off ense] ,  con- 
trary to  the  form,  force,  and  effect  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
people  of  the  state  of  California.  [Amendment  approved  April 
9,  1880;   amendments  1880,  p.  12.     In  effect  April  9,  1880,] 

49  Cal.  388;  58  Cal.  107;  58  Cal.  225;  59  Cal.  374; 
64  Cal.  154;  64  Cal.  261;  64  Cal.  342;  65  Cal.  566; 
66  Cal.  229;  67  Cal.  104;  70  Cal.  99;  70  Cal.  117; 
70  Cal.  524;  77  Cal.  149;  78  Cal.  85;  81  Cal.  159; 
82  Cal.  608:  84  Cal.  471;  85  Cal.  645;  91  Cal.  466: 
94  Cal.  697;  100  Cal.  439;  102  Cal.  241;  105 
Cal.  609;  106  Cal.  407;  112  Cal.  19:  118  Cal.  76; 
119  Cal.  457;  127  Cal.  100;  130  Cal.  14. 

It  must  be  direct  and  certain. 

952.  It  must  be  direct  and  certain,  as  it  regards: 

1.  The  party  charged; 

2.  The  offense  charged; 

3.  The  particular  circumstances  of  the  offense  charged,  whon 
they  are  necessary  to  constitute  a  complete  offense. 

47  Cal  108;  49  Cal.  388;  49  Cal.  395;  53  Cal.  616; 
58  Cal.  107;  58  Cal.  225;  59  Cal.  374;  64  Cal.  154; 

64  Cal.  261;  64  Cal.  342;  66  Cal.  229;  70  Cal.  99; 
70  Cal.  117;  70  Cal.  524;  78  Cal.  85;  81  Cal.  159; 
82  Cal.  608;  84  Cal.  471;  85  Cal  645;  91  Cal.  466; 
94  Cal.  597;  lOO  Cal.  439;  102  Cal.  241;  106  Cal. 
407;  110  Cal.  371;  112  Cal.  19;  118  Cal.  76;  119 
Cal.  168;  119  Cal.  457;  126  Cal.  367;  127  Cal.  100; 
130  Cal.  14;  131  Cal  249. 

When  defendant  is  indicted  by  fictitious  name,  etc. 

953.  When  a  defendant  is  charged  by  a  fictitious  or  erroneous 
name,  and  in  any  stage  of  the  proceedings  his  true  name  is 
discovered,  it  must  be  inserted  in  the  subsequent  proceedings, 
referring  to  the  fact  of  his  being  charged  by  the  name  men- 
tioned ii^  the  indictment  or  information.  [Amendment  approved 
April  9,  1880;   amendments  1880,  p.  13.    In  effect  April  9,  1880.] 

65  Cal.    €15;    78    Cal.    85;    109    Cal.    279. 

Must  cliarge  but  one  offense  and  in  one  form,  except  where  it 
may  be  committesi   by  different  means. 

954.  The  indictment  or  information  must  charge  but  one 
offense,  but  the  same  offense  may  be  set  form  in  different  forms 
under  different  counts,  and,  when  the  olfense  may  be  com- 
mitted by  the  use  of  different  means,  the  means  may  be  alleged 
in  the  alternative  In  the  same  count.  [Amendment  approved 
April  9,  1880;  amendments  1880,  p.  13.  In  effect  April  9, 
1880.] 

47  Cal.  108;  48  Cal.  189;  49  Cal.  453;  58  Cal. 
103;  66  Cal.  675;  94  Cal.  597;  106  Cal.  640;  111 
Cal.  254;  113  Cal.  179;  130  Cal.  4. 

Statement  ^s  to  time  when  offense  was  committed. 

955.  The  precise  time  at  which  the  offense  was  committed 
need  not  be  stated  in  the  indictment  or  information,  but  It 
may  be  alleged  to  have  been  committed  at  any  time  before  the 
finding  or  filing  thereof,   except  where   the  time  is  a  material 


657  RULES  OF  PLEADING  AND  INDICTMENT.  956-959" 

ingredient  in  the  offense.     [Amendment  approved  April  9,  1880; 
amendments  1880,  p.   13.     In  effect  April  9,  1880.] 

68    Cal.    437;    73    Cal.    221;    104    Cal.    612. 

Statement  as  to  person  injured  or  intended  to  be. 

956.  When  an  offense  involves  the  commission  of,  or  an 
attempt  to  commit,  a  private  injury,  and  is  described  with  sufS- 
cient  certainty  in  other  respects  to  identify  the  act,  an 
erroneous  allegation  as  to  the  person  injured,  or  intended  to  be 
injured,  is  not  material. 

59  Cal.  361;  67  Cal.  66;  69  Cal.  237;  70  Cal.  632; 

71  Cal.  21:  72  Cal.  403;  74  Cal.  191;  79  Cal.  180; 

80  Cal.  207;  89  Cal.  496;  112  Cal.  335;  120  Cal. 
662. 

Construction  of  words  used. 

957.  The  words  used  in  an  indictment  or  information  are 
construed  in  their  usual  acceptance  in  common  language,  except 
such  words  and  phrases  as  are  defined  by  law,  which  are  con- 
strued according  to  their  legal  meaning.  [Amendment  approved 
April  9,  1880;   amendments  1880,  p.  13.    In  effect  April  9,  1880.] 

90    Cal.    571;    120    Cal.    663. 

Words  used  in  a  statute  need  not  be  strictly  pursued. 

958.  Words  used  in  a  statute  to  define  a  public  offense  need 
not  be  strictly  pursued  in  the  indictment  or  information,  but 
other  words  conveying  the  same  meaning  may  be  used.  [Amend- 
ment approved  April  9,  1880;  amendments  1880,  p.  13.  In  effect 
April  9,   1880.] 

6S  Cal.   227;  59  Cal.   376;   63  Cal.  28;  90  Cal.  571; 
93  Cal.    631;   106   Cal.   407. 

Indictment  or  information,  when  sufficient. 

959.  The  indictment  or  information  is  BuflQlcient  if  it  can  be 
understood  therefrom: 

1.  That  it  is  entitled  in  a  court  having  authority  to  receive 
it,  though  the  name  of  the  court  be  not  stated. 

2.  If  an  indictment,  that  it  was  found  by  a  grand  jury  of  the 
county  in  which  the  court  was  held,  or  if  an  information,  that  it 
was  subscribed  and  presented  to  the  court  by  the  district 
attorney  of  the  county  in  which  the  court  was  held. 

3.  That  the  defendant  is  named,  or,  if  his  name  cannot  be 
discovered,  that  he  is  described  by  a  fictitious  name,  with  a 
statement  that  his  true  name  is  to  the  jury  or  district  attorney, 
as  the  case  may  be,  unknown.  « 

4.  That  the  offense  was  committed  at  some  place  within  the 
jurisdiction  of  the  court,  except  where  the  act,  though  done 
without  the  local  jurisdiction  of  the  county,  is  triable  therein. 

5.  That  the  offense  was  committed  at  some  time  prior  to  the 
time  of  finding  the  indictment  or  filing  of  the  Information. 

6.  That  the  act  or  omission  charged  as  the  offense  is 
clearly  and  distinctly  set  forth  in  ordinary  and  concise  language, 
without  repetition,  and  in  such  a  manner  as  to  enable  a  person 
of  common  understanding  to  know  what  is  intended. 

7.  That  the  act  or  omission  charged  as  the  offense  is  stated 
with  such  a  degree  of  certainty  as  to  enable  the  court  to  pro- 
nounce judgment  upon  a  conviction,  according  to  the  right  of 


CRIMES--42 


960-965  PENAL  CODE.  658 

the  case.     [Amendment  approved   April  9.   1880;    Amendments 
1880,  p.  13.     In  effect  April  9,  1880.1 

49    Cal.    391;  .57    Cal.    .'•.65:    58    Cal.    228;    59    CaJ 

376:    73    Cal.  ^9;    75    Gal.    630:    77    Cal     149:    77 

«Cal.    447;    78  Cal.    90;    80    Cal.    230;    80    Cal     288- 

S9    Cal.    496;  90    Cal.    572;    93    Cal.    445;    93'  Cal 

583;    96   Cal.  1T5:    99   Cal.    329;    103   Cal     676-    106 

Cal,  407;   118  Cal.  26;   125  Cal.   370;   127  Cal.'  278. 

Not  insufficient  for*  defect  of  fornn  not  tending  to  prejudice  de- 
fendant. 

960.  No  indictment  or  information  is  insufficient,  nor  can  the 
trial,  judgment,  or  other  proceeding  thereon  be  affected  by 
reason  of  any  defect  or  imperfection  in  matter  of  form  which 
does  not  tend  to  the  prejudice  of  a  substantial  right  of  the  de- 
fendant upon  its  merits.  [Amendment  approved  April  9,  1880, 
Amendments  1880,  p.  14.    In  effect  April  9,  1880.] 

56  Cal.  444;  58  Cal.  228;  59  Cal.  377;  61  Cal.  390; 
64  Cal.  54;  64  Cal.;  426;  65  Cal.  446;  75  Cal.  99; 
77  Cal.  149:  78  Cal.  90:  80  Cal.  288:  SI  Cal.  279; 
88  Cal.  139;  90  Cal.  572;  93  Cal.  583;  102  Cal. 
242;  103  Cal.  677;  106  CaJ.  408;  120  Cal.  663; 
125  Cal.  370;  127  Cal.  378;  133  Cal.  73. 

Presumptions  of  law,  etc.,  need  not  be  stated. 

961.  Neither  presumptions  of  law,  nor  matters  of  which  judi- 
cial notice  is  taken,  need  be  stated  in  an  indictment  or  infor- 
mation. [Amendment  approved  April  9,  1880;  Amendments 
1880,  p.  14.     In  effect  April  9.  1880.] 

Judgments,  etc.,  how.  pleaded. 

962.  In  pleading  a  judgment  or  other  determination  of,  or 
proceeding  before,  a  court  or  officer  of  special  jurisdiction,  it  is 
not  necessary  to  state  the  facts  constituting  jurisdiction;  but  the 
judgment  or  determination  may  be  stated  as  given  or  ma^e,  or 
the  proceedings  had.  The  facts  constituting  jurisdiction,  how- 
ever, must  be  established  on  the  trial. 

Private  statutes,  how  pleaded. 

963.  In  pleading  a  private  statute,  or  a  right  derived  there- 
from, it  is  sufficient  to  refer  to  the  statute  by  its  title  and  the 
day  of  its  passage,  and  the  court  must  thereupon  take  judicial 
notice  thereof. 

115    Cal.    447;    126    Cal.    229. 

Pleading  for  libel. 

964.  An  indictment  or  information  for  libel  need  not  set 
forth  any  extrinsic  facts  for  the  purpose  of  showing  the  appli- 
cation to  the  party  libeled  of  the  defamatory  matter  on  which  the 
indictment  or  information  is  founded;  but  it  is  sufficient  to 
state  generally  that  the  same  was  published  concerning  him, 
and  the  fact  that  it  was  so  published  must  be  established  on  the 
trial.  [Amendment  approved  April  9,  1880;  Amendments  l«sO, 
p.  14.     In  effect  April  9,  1880.] 

Pleading  for  forgery,  when    instrument   has  been   destroyed   or 
withheld  by  defendant.  j 

965.  When  an  instrument  which  is  the  subject  of  an  indict- 
ment or  information  for  forgery  has  been  destroyed  or  with- 
held by  the  act  or  the  procurement  of  the  defendant,  and  the 
fact  of  such  destruction  or  withholding  is  alleged  in  the  indict- 
ment, or  information,  and  established  on  the  trial,  the  mis- 
description   of    the    instrument    is    immaterial.      [Amendments 


659  RULES  OF  PLEADING  AND  INDICTMENT.  966-971 

approved  April  9,  1880;  Amendments  1880,  p.  14.    In  effect  April 
9,  1880.] 

Pleading  for  perjury  or   subornation  of  perjury. 

966.  In  an  indictment  or  information  for  perjury,  or  suborna- 
tion of  perjury,  it  is  sufficient  to  set  forth  the  substance  of  the 
controversy  or*  matter  in  respect  to  which  the  offense  was  com- 
mitted, and  in  what  court  and  before  whom  the  oath  alleged 
to  be  false  was  taken,  and  that  the  court,  or  the  person  before 
whom  it  was  taken,  had  authority  to  administer  it,  with  proper 
allegations  of  the  falsity  of  the  matter  on  which  the  perjury 
is  assigned;  but  the  indictment  or  information  need  not  set 
forth  the  pleadings,  record,  or  proceedings  with  which  the  oath 
is  connected,  nor  the  commission  or  authority  of  the  court  or 
person  before  whom  the  perjury  was  committed.  [Amend- 
ment approved  April  9,  1880;  Amendments  1880,  p.  14.  In  effect 
April  9,  1880.] 

59  Cal.   375;  64  Cal.   341;   77  Cal.  14;  113  Cal.   75; 
124    Cal.     464;    131    Cal.     249. 

Pleading  for  larceny  or  embezzlement. 

967.  In  an  indictment  or  information  for  the  larceny  or  em- 
bezzlement of  money,  bank  notes,  certificates  of  stock,  or  valu- 
able securities,  or  for  a  conspiracy  to  cheat  or  defraud  a  person 
of  any  such  property,  it  is  sufficient  to  allege  the  larceny  or  em- 
bezzlement, or  the  conspiracy  to  cheat  and  defraud,  to  be  of 
money,  bank  notes,  certificates  of  stock,  or  valuable  securities, 
without    specifying    the    coin,    number,    denomination,    or    kind 

jthereof.      [Amendment    approved    April    9,    1880;    Amendments 
1880.  p.  15.] 

S9   Cal.    226;   lOO  Cal.   439;    106   Cal.    323;   108  Cal. 
541. 

Pleaching  for  selling,  exhibiting,  etc.,  lewd  and  obscene  books. 

968.  An  indictment  or  information  for  exhibiting,  publishing, 
passing,  selling,  or  offering  to  sell,  or  having  in  possession, 
with  such  intent,  any  lewd  or  obscene  book,  pamphlet,  picture, 
print,  card,  paper,  or  writing,  need  not  set  forth  any  portion 
of  the  language  used  or  figures  shown  upon  such  book,  pamphlet, 
picture,  print,  card,  paper,  or  writing;  but  it  is  sufficient  to 
state  generally  the  fact  of  the  lewdness  or  obscenity  thereof. 
[Amendment  approved  April  9,  1880;  Amendments  1880,  p.  15. 
In  effect  April  9,  1880.] 

Indictment  against  several,  one  or  more  may  be  acquitted. 

970.  Upon  an  indictment  or  information  against  several  de- 
fendants, any  one  or  more  may  be  convicted  or  acquitted. 
[Amendment  approved  April  9,  1880;  Amendments  1880,  p.  15. 
In  effect  April  9,  1880.] 

Distinction     between     accessory     before   the   fact   and    principal 
abrogated. 

971.  The  distinction  between  an  accessory  before  the  fact 
and  a  principal,  and  between  principals  in  the  first  and  second 
degree,  in  cases  of  felony,  is  abrogated;  and  all  persons  con- 
cerned in  the  commission  of  a  felony,  whether  they  directly 
commit  the  act  constituting  the  offense,  or  aid  and  abet  in 
its  commission,  though  not  present,  shall  hereafter  be  prosecuted, 
tried,  and  punished  as  principals,  and  no  other  facts  need 
be  alleged   in   any  indictment  or  information   against  such  an 


972-976  PENAL  CODE.  660 

accessory  than  are  required  in  an  indictment  or  information 
against  his  principal.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  p.  15.     In  effect  April  9,  1880.] 

66   Cal.    393;    78   Cal.    87;    122  Cal.    492;   123   Cal. 

412. 

Accessory  may  be  indicted  and  tried,  thougli  principal  has  not 
been. 
972.  An  accessory  to  the  commission  of  a  felony  may  be 
prosecuted,  tried,  and  punished,  though  the  principal  may  be 
neither  prosecuted  nor  tried,  and  though  the  principal  may  have 
been  acquitted.  [Amendment  approved  April  9,  1880;  Amend- 
ments 1880,  p.  15.     In  effect  April  9,  1880.1 

TITLE  VI. 

OF  PLEADINGS   AND   PROCEEDINGS  AFTER   INDICTMENT 

AND  BEFORE  THE  COMMENCEMENT  OF  THE  TRIAL. 

Chapter  I.    Of  the  Arraignment  of  the  Defendant,  976-90. 
II.    Setting  aside  the  Indictment,  995-9. 
III.     Demurrer,  1002-12. 

IV.  Plea,  1016-25. 

V.  Transmission     of     Certain     Indictments     from     the 

County  Court  to  the  District  Court  or  Municipal 
Criminal  Court  of  San  Francisco,  102^-30. 
VI.     Removal  of  the  Action  before  Trial,  1033-8. 
VII.    The  Mode  of  Trial,  1041-3. 
VIII.     Formation   of   the   Trial   Jury   and   the  , Calendar  of 

Issues  for  Trial,  1046-9.  ', 

IX.    Postponement  of  the  Trial,  1052. 

CHAPTER  I. 

OF  THE  ARRAIGNMENT   OF   THE   DEFENDANT. 

Sec.     976.  Defendant  must  be  arraigned  In  the  court  where  the  Indict- 
ment is  filed   or  transferred. 

977.  Defendant,  when  to  bo  present  at  arraignment. 

978.  If  In  custody,  to  be  brought!  before  court. 

979.  If  discharged  on  bail,  bench  warrant  to  issue. 

980.  Bencli  warrant,  by  whom  and  how  issued. 

981.  Form  of  bench  warrant 

982.  Directions  in  the  bench  warrant. 

983.  Bench  warrant,  how  served. 

984.  Proceedings  on  giving  i)ail  in  another  county. 

985.  Ordering  defendant  into  custody  or  Increasing  bail  when  Indict- 

ment is  for  felony. 

986.  Defendant,  if  present  when  order  made,  to  be  committed;  If 

not,  bencli  warrant  to  issue. 

987.  Right   to  coimsel   on   arraignment. 

988.  Arraignment,    how    made. 

989.  Proceedings  on  arraignment,  when  defendant  Is  not  indicted 

by   his  true   name. 

990.  Time  allowed,   and  how  defendant  may  answer  on  arraign- 

ment. 

Defendant  must  be  arraigned  in  the  court  where  the  indictment 
is  filed  or  transferred. 
976.  When  the  indictment  or  information  is  filed,  the  defend- 
ant must  be  arraigned  thereon  before  the  court  in  which  it  is 
filed,  unless  the  cause  is  transferred  to  some  other  county  for 
trial.  [Amendment  approved  April  9,  1880;  Amendments  1880, 
p.  15.    In 'effect  April  9,  1880.1 

60    Cal.     105;    78    Cal.    564. 


661  ARRAIGNMENT  OF  DEFENDANT.  977-982 

Defendant,  when  to  be  present  at  arraignment. 

977.  If  the  indictment  or  information  be  for  a  felony,  the  de- 
fendant must  be  personally  present;  but  if  for  a  misdemeanor, 
he  may  appear  upon  the  arraignment  by  counsel.  [Amendment 
approved  April  9,  1880;  Amendments  1880,  p.  16.  In  effect  April 
9,  1880.1 

55    CaJ.    298;    57   Cal.    350. 

(f  in  custody,  to  be  brought  before  court. 

978.  When  his  personal  appearance  is  necessary,  if  he  Is  In 
custody,  the  court  may  direct  and  the  officer  in  whose  custody 
he  is  must  bring  him  before  it  to  be  arraigned. 

57  Cal.  350. 

if  discharged  on  bail,  bench  warrant  to  issue. 

979.  If  the  defendant  has  been  discharged  ou  bail,  or  has  de- 
posited money  instead  thereof,  and  do  not  appear  to  be  arraigned 
when  his  personal  attendance  is  necessary,  the  court,  in  addi- 
tion to  the  forfeiture  of  the!  undertaking  of  bail  or  of  the  money 
deposited,  may  direct  the  clerk  to  issue  a  bench  warrant  for  his 
arrest. 

55    Cal.    29S;    57    Cal.    350. 

Bench  warrant,  by  whom  and  how  issued. 

980.  The  clerk,  on  the  application  of  the  district  attorney, 
may,  at  any  time  after  the  order,  whether  the  court  is  sitting  or 
not,  issue  a  bench  warrant  to  one  or  more  counties. 

55    Cal.    298. 

Form   of  bench  warrant. 

"981.    The  bench  warrant  upon  the  indictment  or  information 
must,  if  the  offense  is  a  felony,  be  substantially  in  the  following 

form:     County  of  .     The  People  of  the  state  of  California 

to  any  sheriff,  constable,  marshal,  or  policeman  in  this  state: 
And  indictment  having  been  found  [or  information  filed]  on  the 

day   of  ,   A.    D.   eighteen   ,    in   the   Superior 

Court  of  the  county  of  ,  charging  C    D    with  the  crime  of 

• [designating  it  generally] ;  you  are,  therefore,  com- 
manded forthwith  to  arrest  the  above  named  C  D,  and  bring 
him  before  that  court  [or  if  the  indictment  and  information 
has  been  sent  to  another  court,  then  before  that  court,  naming 
it],  to  answer  said  indictment  [or  information],  or  if  the  court 
be  not  in  session,  that  you  deliver  him  into  the  custody  of  the 
sheriff  of  the  county  of  . 

Given  under  my  hand,  with  the  seal  of  said  court  affixed,  this 
day  of  ,  A.  D.  . . 

By  order  of  said  Court. 

[Seal.]  B  P,  Clerk. 

[Amendment  approved  April  9,  1880;  Amendments  1880,  p.  16. 
In  effect  April  9,  1880.] 

54    Cal.    103;    55    Cal.    29S. 

Directions   in  the  bench  warrant. 

982.  The  defendant,  when  arrested  under  a  warrant  for  an 
offense  not  bailable,  must  be  held  in  custody  by  the  sheriff  of 
the  county  in  which  the  indictment  is  found  or  information 
filed,  unless  admitted  to  bail  after  an  examination  upon  a  writ 
of  habeas  corpus;  but  if  the  offense  is  bailable,  there  must  be 
added  to  the  body  of  the  bench  warrant  a  direction  to  the  fol- 
lowing effect:     "Or,  if  he  requires  it,  that  you  take  him  before 


983-988  PENAL  CODE.  662 

any  magistrate  in  that  county,  or  in  the  count:'  in  which  you 
arrest  him,  that  he  may  give  bail  to  answer  lo  the  indictment 
[or  information!;"  and  the  court,  upon  directing  it  to  issue,  must 
fix  the  amount  of  bail,  and  an  indorsement  must  be  made  thereon 
and  signed  by  the  clerk,  to  the  following  effect:  "The  defendant 
is  to  be  admitted  to  bail  in  the  sum  of dollars."  [Amend- 
ment approved  April  9,  1880;  Amendments  1880,  p.  16.  In  effect 
April  9,  1880.] 

5i   Cal.    103;    55   Cal.    298. 

Bench  warrant,  how  served. 

983.  The  bench  warrant  may  be  served  in  any  county,  in  the 
same  manner  as  a  warrant  of  arrest,  except  that  when  served  in 
another  county  it  need  not  be  indorsed  by  the  magistrate  of  that 
county. 

55     Cal.     298. 

Proceedings  on  giving  bail  in  another  county. 

984.  If  the  defendant  is  brought  before  a  magistrate  of  an- 
other county  for  the  purpose  of  giving  bail,  the  magistrate  must 
proceed  in  respect  thereto  in  the  same  manner  as  if  the  de- 
fendant had  been  brought  before  him  upon  a  warrant  of  arrest, 
and  the  same  proceedings  must  be  had  thereon. 

55     Cal.     298. 

Ordering  defendant  into  custody  or  increasing  bail  when  Indict- 
ment is  for  felony. 

985.  When  the  information  or  indictment  is  for  a  felony,  and 
the  defendant,  before  the  filing  thereof,  has  given  bail  for  his 
appearance  to  answer  the  charge,  the  court  to  which  the  indict- 
ment or  information  is  presented,  or  In  which  it  is  pending,  may 
order  the  defendant  to  be  committed  to  actual  custody,  unless 
he  gives  bail  In  an  increased  amount,  to  be  specified  in  the 
order.  [Amendment  approved  April  9,  1880;  Amendments  1880, 
p.  16.     In  effect  April  9,  1880.J 

Defendant,  If  present  when  order  made,  to  be  committed;  If  not, 
bench  warrant  to  issue. 

986.  If  the  defendant  is  present  when  the  order  is  made, 
he  must  be  forthwith  committed.  If  he  is  not  present,  a  bench 
warrant  must  be  issued  and  proceeded  upon  in  the  manner  pro- 
vided in  this  chapter. 

Right  to  counsel  on  arraignment. 

987.  If  the  defendant  appears  for  arraignment  wiihout  coun- 
sel, he  must  be  Informed  by  the  court  that  it  is  his  right  to  have 
counsel  before  being  arraigned,  and  must  be  asked  if  he  desires 
the  aid  of  counsel.  If  he  desires  and  is  unable  to  employ  coun- 
sel, the  court  must  assign  counsel  to  defend  him. 

55    Cal.    298;    66    Cal.    229;    102    Cal.    231. 

Arraignment,  how  made. 

988.  The  arraignment  must  be  made  by  the  court,  or  by  the 
clerk  or  district  attorney  under  its  direction,  and  consists  In 
reading  the  indictment  or  information  to  the  defendant  and 
delivering  to  him  a  copy  thereof,  and  of  the  indorsements  there- 
on, including  the  list  of  witnesses,  and  asking  him  whether  he 
pleads  guilty  or  not  guilty  to  the  indictment  or  information. 
[Amendment  approved  April  9,  1880;  Amendment  1880,  p.  16. 
In  effect  April  9,  1880.] 

65    Cal.    296;    66    Cal.    229;    71    Cal.    387;    73    Cal. 
445:    76    Cal.    247;    104    Cal.    377. 


663  SETTING  ASIDE  THE  INDICTMENT.  989-995 

Proceedings  on  arraignment,  when  defendant  is  not  Indicted  by 
his  true  name. 

989.  When  the  defendant  is  arraigned,  he  must  be  informed 
that  if  the  name  by  which  he  is  prosecuted  is  not  his  true  name, 
he  must  then  declare  his  true  name,  or  be  proceeded  against  by 
the  name  in  the  indictment  or  information.  If  he  gives  no  other 
name,  the  court  may  proceed  accordingly;  but  if  he  alleges  that 
another  name  is  his  true  name,  the  court  must  direct  an  entry 
thereof  in  the  minutes  of  the  arraignment,  and  the  subsequent 
proceedings  on  the  information  or  indictment  may  be  had 
against  him  by  that  name,  referring  also  to  the  name  by  which 
he  was  first  charged  therein.  [Amendment  approved  April  9, 
1880;    Amendments  1880,   p.   17.     In  effect  April  9,  1880.] 

66    Cal.    229;    109    Cal.    280. 

Time  allowed,  and   how  defendant  may  answer  on  arraignment. 

990.  If,  on  the  arraignment,  the  defendant  requires  it,  he  must 
be  allowed  a  reasonable  time,  not  less  than  one  day,  to  answer 
the  indictment  or  information.  He  may,  in  answer  to  the  ar- 
raignment, move  to  set  aside,  demur,  or  plead  to  the  indict- 
ment or  information.  [Amendment  approved  April  9,  1880 ; 
Amendments  1880,  p.  17.     In  effect  April  9,  1880.] 

90    Cal.    200. 

CHAPTER   II. 
SETTING  ASIDE   THE   INDICTMENT. 

Sec.     995.    Indictment,   when  set  aside  on   motion. 

996.  Defendant    waives    objections,    nnless    he    malies    the    motion. 

997.  Motion,    when    heard.      If    denied    or    granted,    what    proceed- 

ings  are   to   be    had. 

998.  Effect   of  order   for   submission. 

999.  Order  no   bar   to   another   prosecution. 

Indictment,  when   set  aside   on   motion. 

995.  The  indictment  or  information  must  be  set  aside  by  the 
court  in  which  the  defendant  is  arraigned,  upon  his  motion,  in 
either  of  the  following  cases.    If  it  be  an  indictment: 

1.  Where  it  is  not  found,  indorsed,  and  presented  as  pre- 
scribed in  this  code. 

2.  When  the  names  of  the  witnesses  examined  before  the 
grand  jury,  or  whose  depositions  may  have  been  read  before 
them,  are  not  inserted  at  the  foot  of  the  indictment,  or  in- 
dorsed thereon. 

3.  When  a  person  is  permitted  to  be  present  during  the 
session  of  the  grand  jury,  and  when  the  charge  embraced  in 
the  indictment  is  under  consideration,  except  as  provided  in 
section  nine  hundred  and  twenty-five. 

4.  When  the  defendant  had  not  been  held  to  answer  before^ 
the  finding  of  the  indictment,  on  any  ground  which  would  have 
been  good  ground  for  challenge,  either  to  the  panel  or  to  any 
individual  grand  juror. 

If  it  be  on  information: 

1.  That  before  the  filing  thereof  the  defendant  had  not  been 
legally  committed  by  a  magistrate. 

2.  That  it  was  not  subscribed  by  the  district  attorney    of  the 


996-999  PENAL  CODE.  664 

county.      [Amendment   approved   April    26,    1880;    Amendments 
1880,  p.  43.    In  effect  April  26,  1880.] 

49  Cal.  651;  54  Cal.  38;  54  Cal.  399;  .'^6  Cal.  38; 
59  Cal.  365;  64  Cal.  261;  64  Cal.  382;  64  Cal. 
528;  65  Cal.  218;  65  Cal  614;  68  Cal.  503;  69 
Cal.  547;  69  Cal.  602;  71  Cal.  212;  76  Cal.  344; 
82  Cal.  621;  83  Cal.  558;  88  Cal.  85;  88  Cal.  235; 
90  Cal.  200;  91  Cal.  642;  115  Cal.  60;  117  Cal. 
560;  119  Cal  2;  119  Cal.  325;  122  Cal.  39;  130 
Cal.  74;  132  Cal.  200. 

Defendant   waives   objections,   unless    he    makes   the    motion. 

996.  If  the  motion  to  set  aside  the  indictment  or  information 
Is  not  made,  the  defendant  is  precluded  from  afterwards  taking 
the  objections  mentioned  in  the  last  section.  [Amendment  ap- 
proved April  '9,  1880;  Amendments  1880,  p.  17.  In  effect  April 
9,  1880.] 

48    Cal.    5oiO;    82    Cal.    621;    50    Cal.    200. 

IVlotion,   when    heard.      If   granted   or   denied,   what    proceedings 
are  to   be   had. 

997.  The  motion  must  be  heard  at  the  time  it  Is  made,  unless 
for  cause  the  court  postpones  the  hearing  to  another  time.  If 
the  motion  is  denied,  the  defendant  must  immediately  answer 
the  indictment  or  information,  either  by  demurring  or  pleading 
thereto.  If  the  motion  is  granted,  the  court  must  order  that 
the  defendant,  if  in  custody,  be  discharged  therefrom;  or,  if 
admitted  to  bail,  that  his  bail  be  exonerated;  or,  if  he  has  de- 
posited money  instead  of  bail,  that  the  same  be  refunded  to  him, 
unless  it  directs  that  the  case  be  resubmitted  to  the  same  or 
another  grand  jury,  or  that  an  information  be  filed  by  the  dis- 
trict attorney;  provided,  that  after  such  order  of  resubmission 
the  defendant  may  be  examined  before  a  magistrate,  and  dis- 
charged or  committed  by  him,  as  in  other  cases,  if  before  indict- 
ment or  information  filed  he  has  not  been  examined  and  com- 
mitted by  a  magistrate.  [Amendment  approved  April  9,  1880; 
Amendments  1880.  p.  17.     In  effect  April  9,  1880.] 

88  Cal.  85;  101  Cal.   515;  127  Cal.   64;  130  Cal.   74. 

Effect  of  order  for  submission. 

998.  If  the  court  directs  the  case  to  be  resubmitted,  or  an 
information  to  be  filed,  the  defendant,  if  already  in  custody,  must 
so  remain,  unless  he  is  admitted  to  bail;  or,  if  already  admitted 
to  bail,  or  money  has  been  deposited  instead  thereof,  the  bail 
or  money  is  answerable  for  the  appearance  of  the  defendant  to 
answer  a  new  indictment  or  information;  and,  unless  a  new  in- 
dictment is  found  or  information  filed  before  the  next  grand 
jury  of  the  county  is  discharged,  the  court  must,  on  the  dis- 
charge of  such  grand  jury,  make  the  order  prescribed  by  the  pre- 
ceding section.  [Amendment  approved  April  9,  1880;  Amend- 
ments 1880,  p.  17.     In  effect  April  9,  1880.] 

Order  no   bar  to   another   prosecution. 

999.  An  order  to  set  aside  an  indictment  or  information,  as 
provided  in  this  chapter,  is  no  bar  to  a  future  prosecution  for 
the  same  offense.  [Amendment  approved  April  9,  1880;  Amena- 
ments  1880,  p.  18.     In  effect  April  9,  1880.] 

123    Cal.    455;    127    Cal.    64;    130    Cal.    75. 


665  DEMURRER.  1002-1007 

CHAPTER  III. 
DEMURRER. 

Sec.    1002.  Pleading   on   part  of  defendant. 

1003.  Demurrer  or   plea,    when   put  in. 

1004.  Grounds    of    demurrer. 

1005.  Demurrer,  how   put  in,   and   Its   form. 

1006.  When  heard. 

1007.  Judgment    on    demurrer. 

1008.  If   allowed,    bar   to   another   prosecution,   when. 

1009.  If  resubmission  not  ordered,  defendant  discharged,  etc. 

1010.  Proceedings,   if  submission   ordered. 

1011.  Proceedings,    if    demurrer    is    disallowed. 

1012.  Objection,   forming  ground  of  demurrer,   when  taken. 

Pleading  on  part  of  defendant. 

1002.  The  only  pleading  on  the  part  of  the  defendant  Is 
either  a  demurrer  or  a  plea. 

Demurrer  or  plea,  when    put   in. 

1003.  Both  the  demurrer  and  plea  must  be  put  in,  in  open 
court,  either  at  the  time  of  the  arraignment  or  at  such  other 
time  as  may  be  allowed  to  the  defendant  for  that  purpose. 

Grounds  of  demurrer. 

1004.  The  defendant  may  demur  to  the  indictment  or  infor- 
mation when  it  appears  upon  the  face  thereof,  either: 

1.  If  an  indictment,  that  the  grand  jury  by  which  it  was  found 
had  no  legal  authority  to  inquire  into  the  offense  charged,  by 
reason  of  its  not  being  within  the  legal  jurisdiction  of  the 
county;  or,  if  an  information,  that  the  court  has  no  jurisdiction 
of  the  offense  charged  therein. 

2.  That  it  does  not  substantially  conform  to  the  requirement 
of  sections  nine  hundred  and  fifty,  nine  hundred  and  fifty-one, 
and  nine  hundred  and  fifty-two. 

3.  That  more  than  one  offense  is  charged. 

4.  That  the  facts  stated  do  not  constitute  a  public  offense. 

5.  That  it  contains  any  matter,  which,  if  true,  would  con- 
stitute a  legal  justification  or  excuse  of  the  offense  charged, 
or  other  legal  bar  to  the  prosecution.  [Amendment  approved 
April  9,  1880;  Amendments  1880,  p.  18.     In  effect  April  9,  1880.] 

47  Cal.  lOS;  47  Cal.  113;  48  Cal.  252;  48  Cal. 
559;  49  Cal.  390;  56  Cal.  535;  58  Cal.  225;  64 
Cal.  158;  64  Cal.  261;  6S  Cal.  504;  71  Cal.  389; 
77  Cal.  34;  82  Cal  620;  85  Cal.  89;  103  Cal.  428; 
103  Cal.  677;  106  Cal.  640;  107  Cal.  480:  119  Cal. 
168;  120  Cal.  661;  131  Cal.  23W;  133  Cal.  624. 

Demurrer,  how  put  in,  and  its  form. 

1005.  The  demurrer  must  be  in  writing,  signed  either  by  the 
defendant  or  his  counsel,  and  filed.  It  must  distinctly  specify 
the  grounds  of  objection  to  the  indictment  or  information,  or  it 
must  be  disregarded.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  p.  18.     In  effect  April  9,  1880.] 

Wlien    heard. 

1006.  Upon  the  demurrer  being  filed,  the  argument  upon  the 
objections  presented  thereby  must  be  heard,  either  immediately 
or  at  such  time  as  the  court  may  appoint. 

Judgment  on   demurrer. 

1007.  Upon  considering  the  demurrer,  the  court  must  give 
judgment,  either  allowing  or  disallowing  it,  and  an  order  to 
that  effect  must  be  entered  upon  the  minutes. 

65   Cal.    .566;    65  Cal.    645;    121   Cal.    494. 


1008-1012  PENAL  CODE.  666 

If  allowed,  bar  to  another  prosecution,  when. 

1008.  If  the  demurrer  is  allowed,  the  judgment  is  final  upon 
the  indictment  or  information  demurred  to,  and  is  a  bar  to  an- 
other prosecution  for  the  same  offense,  unless  the  court,  being 
of  the  opinion  that  the  objection  on  which  the  demurrer  is 
allowed  may  be  avoided  in  a  new  indictment  or  information, 
directs  the  case  to  be  submitted  to  another  grand  jury,  or  directs 
a  new  information  to  be  filed;  provided,  that  after  such  order 
of  resubmission  the  defendant  may  be  examined  before  a  magis- 
trate, and  discharged  or  committed  by  him,  as  in  other  cases. 
[Amendment  approved  April  9,  1880;  Amendment  1880,  p.  18. 
In  effect  April  9,  1880.] 

63  Cal.  219;  77  Cal.  34;  107  Cal.  478;  116  Cal. 
513;  117  Cal.  560;  118  Cal.  27;  1S2  Cal.  39. 

If    resubmission    not   ordered,   defendant   discharged,    etc. 

1009.  If  the  court  does  not  permit  the  information  to  be 
amended,  nor  direct  that  an  information  be  filed,  or  that  the 
case  be  resubmitted,  as  provided  in  the  preceding  section,  the 
defendant,  if  in  custody,  must  be  discharged,  or  if  admitted  to 
bail,  his  bail  is  exonerated,  or  if  he  has  deposited  money  in- 
stead of  bail,  the  money  must  be  refunded  to  him.  [Amendment 
approved  April  9,  1880;  Amendments  1880,  p.  18.  In  effect 
April  9,  1880.1 

116   Cal.    514. 

Proceedings,  if  submission  ordered. 

1010.  If  the  court  directs  that  the  case  be  resubmitted,  the 
same  proceedings  must  be  had  thereon  as  are  prescribed  in  sec- 
tions 997  and  998. 

Proceedings,  if  demurrer  is  disallowed. 

1011.  If  the  demurrer  is  disallowed,  the  court  must  permit  the 
defendant,  at  his  election,  to  plead,  which  he  must  do  forthwith, 
or  at  such  time  as  the  court  may  direct.  If  he  does  not  plead 
judgment  may  be  pronounced  against  him. 

68    Cal.    181;    102    Cal.    232. 

Objection,  forming  ground  of  demurrer,  when  taken. 

1012.  When  the  objections  mentioned  in  section  one  thousand 
and  four  appear  on  the  face  of  the  indictment  or  information, 
they  can  only  be  taken  by  demurrer,  except  that  the  objection 
to  the  jurisdiction  of  the  court  over  the  subject  of  the  indict- 
ment or  information,  or  that  the  facts  stated  do  not  constitute 
a  public  offense,  may  be  taken  at  the  trial,  under  the  plt^a  of 
not  guilty,  or  after  the  trial,  in  arrest  of  judgment.  [Amend- 
ment approved  April  9,  1880;  Amendments  1880,  p  19.  In  effect 
April  9,  1880.] 

47  Cal.  108;  58  Cal.  225;  64  Cal.  158;  66  Cal. 
230;  68  Cal.  504;  71  Cal.  389;  90  Cal.  199;  100 
Cal.  439;  103  Cal.  428;  103  Cal.  566;  103  Cal.  677; 

119  Cal.  168;  127  Cal.  549;  131  Cal.  250;  133  Cal. 

624. 


667  DEMURRER — PLEA.  1016-1019 

CHAPTER  IV. 
PLEA. 

Sec.    1016.  The  different  kinds  of  pleas. 

1017.  Plea,    how   put    In,    and    its   form. 

1018.  Plea   of  guilty,   how  put   in,   and   when   withdrawn. 

1019.  What   plea   of   not   guilty    puts  in    issue. 

1020.  What  may  be  given  in   evidence  under  plea  of  not  guilty. 

1021.  What   is  not   a   former   acauittal. 

1022.  What  is  a  former  acquittal. 

1023.  Conviction    or   acquittal    for   a   higher   offense,    effect   of. 

1024.  Defendant   refusing   to   answer,    plea   of   not   guilty. 

The  different  kind  of  pleas. 

1016.  There  are  four  kinds  of  pleas  to  an  indictment  or  in- 
formation.   A  plea  of: 

1.  Guilty. 

2.  Not  guilty. 

3.  A  former  judgment  of  conviction  or  acquittal  of  the  offense 
charged,  which  may  be  pleaded  either  with  or  without  the  plea 
of  not  guilty. 

4.  Once  in  jeopardy.  [Amendment  Approver  April  26,  1880; 
Amendments  1880,  p.  44.       In  effect  April  26,  1880.] 

48    Cal.    329;    49    Cal.    395;    60    Cal.    86. 

Plea,    how  put   in,   and    its  form. 

1017.  Every  plea  must  be  oral,  and  entered  upon  the  minutes 
of  the  court  in  substantially  the  following  form: 

1.  If  the  defendant  plead  guilty:  "The  defendant  pleads  that 
be  is  guilty  of  the  offense  charged." 

2.  If  he  plead  not  guilty:  "The  defendant  pleads  that  he  is 
not  guilty  of  the  offense  charged." 

3.  If  he  plead  a  former  conviction  or  acquittal:  "The  defend- 
ant pleads  that  he   has   already  been  convicted    [or   acquitted] 

of  the  offense  charged  by  the  judgment  of  the  court  of  ■ 

[naming  it],  rendered  at  [naming  the  place],  on  the  — 

day  of  ." 

4.  If  he  plead  once  in  jeopardy:  "The  defendant  pleads  that 
he  has  been  once  in  jeopardy  for  the  offense  charged  [specifying 
the  time,  place,  and  court]."  [Amendment  approved  April  26, 
1880;    amendments   1880,   p.   44.     In   effect  April   26,   1880.] 

47  Cal.  124;  49  Cal.  395;  52  Cal.  4S0;  53  Cal. 
298;  64  Cal.  403;  73  Cal.  445;  77  Cal.  33;  101 
Cal.     282. 

Plea  of  guilty,  how  put  in,  and  when  withdrawn. 

1018.  A  plea  of  guilty  can  be  put  in  by  the  defendant  him- 
self only  in  open  court,  unless  upon  indictment  or  information 
against  a  corporation,  in  which  case  it  may  be  put  in  by  coun- 
sel. The  court  may  at  any  time  before  judgment,  upon  a  plea 
of  guilty,  permit  it  to  be  withdrawn  and  a  plea  of  not  guilty 
substituted.  [Amendment  approved  April  9,  1880;  amendments 
1880,  p.  19.     In  effect  April  9,  1880.] 

82    Cal.    618;    114    Cal.    16. 

What  plea  of  not  guilty  puts  in  issue. 

1019.  The  plea  of  not  guilty  puts  in  issue  every  material 
allegation  of  the  indictment  or  information.  [Amendment  ap- 
proved April  9,  1880;  amendments  1880,  p.  19.  In  effect  April 
9,  1880.] 

60   Cal.    86;    88   Cal.    117. 


1020-1029  PENAL  CODE.  668 

What  may  be  given  in  evidence  under  plea  of  not  guilty. 

1020.  All  matters  of  fact  tending  to  establish  a  defense,  other 
than  that  specified  in  the  third  and  fourth  subdivisions  of  sec- 
tion one  thousand  and  sixteen,  may  be  given  in  evidence  under 
the  plea  of  not  guilty.  [Amendment  approved  April  26,  1880; 
amendments  1880,  p.  44.     In  effect  April  26,  1880.] 

48  Cal.   329;   60   Cal.    S6;    114  Cal.   59. 

What  is  not  a  former  acquittal. 

1021.  If  the  defendant  was  formerly  acquitted  on  the  ground 
of  variance  between  the  indictment  or  information  and  the 
proof,  or  the  indictment  or  information  was  dismissed  upon  an 
objection  to  its  form  or  substance,  or  in  order  to  hold  the 
defendant  for  a  higher  offense,  without  a  judgment  of  acquittal, 
it  is  not  an  acquittal  of  the  same  offense.  [Amendment  approved 
April  9,  1880;  amendments  1880,  p.  19.    In  effect  April  9,  1880. J 

70  Cal.    65;    79    Cal.    179;    132   Cal.    500;    133   Cal.  129. 

What  is  a  former  acquittal. 

1022.  Whenever  the  defendant  is  acquitted  on  the  merits,  he 
is  acquitted  of  the  same  offense,  notwithstanding  any  defect  in 
form  or  substance  in  the  indictment  or  information  on  which 
the  trial  was  had.  [Amendment  approved  April  9,  1880;  amend- 
ments 1880,  p.  19.     In  effect  April  9,  1880.] 

Conviction  or  acquittal  for  a  higher  offense,  effect  of. 

1023.  When  the  defendant  is  convicted  or  acquitted,  or  has 
been  once  placed  in  jeopardy  upon  an  indictment  or  information, 
the  conviction,  acquittal,  or  jeopardy  is  a  bar  to  another  indict- 
ment or  information  for  the  offense  charged  in  the  former,  or  for 
an  attempt  to  commit  the  same,  or  for  an  offense  necessarily 
included  therein,  of  which  he  might  have  been  convicted  under 
that  indictment  or  information.  [Amendment  approved  April 
26,  1880;   amendments  1880,  p.  45.     In  effect  April  26,  1880.] 

99   Cal.    231;    132    Cal.    500;    133   Cal.    129. 

Defendant  refusing  to  answer,  plea  of  not  guilty. 

1024.  If  the  defendant  refuses  to  answer  the  indictment  or 
information  by  demurrer  or  plea,  a  plea  of  not  guilty  must  be 
entered.  [Amendment  approved  April  9,  1880;  amendments  1880, 
p.  19.     In  effect  April  9,  1880.] 

71  Cal.    396. 

CHAPTER  V. 

TRANSMISSION  OF  CERTAIN  INDICTMENTS  FROM  THE 
COUNTY  COURT  TO  THE  DISTRICT  COURT,  OR  MUNI- 
CIPAL CRIMINAL  COURT  OF  SAN  FRANCISCO. 

Sec.    1029.    Indictment  against  a  superior  judge. 

Indictment  against  a  superior  judge. 

1029.  When  an  indictment  is  found  or  an  information  filed 
In  a  Superior  Court  against  a  judge  thereof,  a  certificate  of  that 
fact  must  be  transmitted  by  the  clerk  to  the  governor,  who  shall 
thereupon  designate  and  direct  a  judge  of  the  Superior  Court 
of  another  county  to  preside  at  the  trial  of  such  indictment  or 
information,  and  hear  and  determine  all  pleas  and  motions 
affecting  the  defendant  thereunder  before  and  after  judgment. 
[Amendment  approved  March  12,  1880;  amendments  1880,  p.  6. 
In  effect  March  12,  1880.] 

81    Cal.    569. 


669  PLEA — REMOVAL  OF  ACTION.  1033-1057 

CHAPTER  VI. 
REMOVAL  OF  THE  ACTION  BEFORx:  TRIAL. 

Sec.    1033.  When  action  may  be  removed. 

1034.  Application  for   removal,   how   made. 

1035.  Application,    when    granted. 

1036.  Order  of  removal. 

1037.  Pioceedings  on  removal,   If  defendant  is  In  custody. 

1038.  Proceedings  on    removal.      Transmission   of   papers. 

When    action    may   be    removed. 

1033.  A  criminal  action  may  be  removed  from  tne  court  in 
which  it  is  pending: 

First — On  the  application  of  the  defendant,  on  the  ground 
that  a  fair  and  impartial  trial  cannot  he  had  in  the  county 
where  the  action  is  pending. 

Second — On  the  application  of  the  district  attorney,  on  the 
ground  that  from  any  cause  no  jury  can  be  obtained  for  the 
trial  of  the  defendant  in  the  county  where  the  action  is  pend- 
ing. [Amendment  approved  March  9,  1887;  stats.  1887,  p.  61. 
In  effect  March  9,  1887.] 

56  Cal.  328;  65  Cal.  147;  80  Cal.  29S;  87  Cal.  350; 
132    Cal.    632. 

Application  for  removal,  how  made. 

1034.  The  application  must  be  made  in  open  court  and  In 
writing,  verified  by  the  affidavit  of  the  defendant  or  of  the  dis- 
trict attorney,  as  the  case  may  be,  a  copy  of  which  application 
must  be  served  upon  the  attorney  of  the  adverse  party  at  least 
one  day  prior  to  the  hearing  of  the  application.  Whenever  the 
affidavit  of  the  defendant  shows  that  he  cannot  safely  appear  in 
person  to  make  such  application  because  popular  prejudice  is 
so  great  as  to  endanger  his  personal  safety,  and  such  statement 
Is  sustained  by  other  testimony,  such  application  may  be  made 
by  his  attorney,  and  shall  be  heard  and  determined  in  the 
absence  of  the  defendant,  notwithstanding  the  charge  then 
pending  against  him  be  a  felony,  and  he  has  not  at  the  time 
of  such  application  been  arrested  or  given  bail,  or  been  arraigned, 
or  pleaded,  or  demurred  to  the  indictment  or  information. 
[Stats.  1887,  p.  62.     In  effect"  March  9,  1887.] 

56   Cal.    330;    65  Cal.    147.  " 

Application,    when    granted. 

1035.  If  the  court  be  satisfied  that  the  representations  of 
the  applicant  are  true,  an  order  must  be  made  transferring 
the  action  to  the  proper  court  of  some  convenient  county  free 
from  a  like  objection.  [Amendment  approved  March  9,  1887; 
stats.  1887,  p.  62.     In  effect  March  9,  1887.] 

S5    Cal.    147;   80   Cal.    298. 
Order  of  removal. 

1036.  The  order  of  removal  must  be  entered  upon  the  min- 
utes, and  the  clerk  must  immediately  make  out  and  transmit 
to  the  court  to  which  the  action  Is  removed  a  certified  copy 
of  the  order  of  removal  record,  pleadings,  and  proceedings  in 
the  action,  Including  the  undertakings  for  the  appearance  of  the 
defendant  and  of  the  witnesses. 

71    Cal.     605. 

Proceedings  on  removal,  if  defendant  is  in  custody. 

1037.  If  the  defendant  is  in  custody,  the  order  must  direct 
his  removal,  and  he  must  be  forthwith  removed  by  the  sheriff 


1038-1043  PENAL  CODE.  670 

of  the  county  where  he  is  imprisoned,  to  the  custody  of  the 
sheriff  of  the  county  to  which  the  action  is  removed. 

Proceedings  on    removal.     Transmission   of  papers. 

1038.  The  court  to  which  the  action  is  removed  must  proceed 
to  trial  and  judgment  therein  as  if  the  action  had  been  com- 
menced in  such  court.  If  it  is  necessary  to  have  any  of  the 
original  pleadings  or  other  papers  before  such  court,  the  court 
from  which  the  action  is  removed  must  at  any  time,  upon 
application  of  the  district  attorney  or  the  defendant,  order  such 
papers  or  pleadings  to  be  transmitted  by  the  clerk,  a  certified 
copy  thereof  being  retained. 


CHAPTER  VII. 
THE  MODE  OF  TRIAL. 

Sec.    1041.    Issue  of  fact  defined. 

1042.  How  tried. 

1043.  When   presence  of  defendant   Is  necessary  on   the  trial. 

Issue  of  fact  defined. 

1041.  An  issue  of  fact  arises: 

1.  Upon  a  plea  of  not  guilty. 

2.  Upon  a  plea  of  a  former  conviction  or  acquittal  of  the 
same  offense. 

3.  Upon  a  plea  of  once  in  jeopardy.  [Amendment  approved 
April  26,  1880;  amendments  1880,  p.  45.  In  effect  April  26, 
1880.] 

How  tried. 

1042.  Issues  of  fact  must  be  tried  by  jury,  unless  a  trial  by 
jury  be  waived  in  criminal  cases  not  amounting  to  felony,  by 
the  consent  of  both  parties  expressed  in  open  court  and  entered 
In  its  minutes.  In  cases  of  misdemeanor  the  jury  may  consist 
of  twelve,  or  any  number  less  than  twelve  upon  which  the  par- 
ties may  agree  in  open  court.  [Amendment  approved  February 
25,  1880;   amendments  1880,  p.  5.     In  effect  February  25,  1880.] 

92    Cal.    575. 

When  presence  of  defendant  is  necessary  on  the  trial. 

1043.  If  the  prosecution  be  for  a  felony,  the  defendant  must 
be  personally  present  at  the  trial;  but  if  for  misdeameanor,  the 
trial  may  be  had  in  the  absence  of  the  defendant;  if,  however, 
his  presence  is  necessary  for  the  purpose  of  identification,  the 
court  may,  upon  application  of  the  district  attorney,  by  an 
order  or  warrant,  require  the  personal  attendance  of  the 
defendant  at  the  trial.  [Amendment  approved  April  9,  1880; 
amendments  1880,  p.  19.     In  effect  April  9,  1880.] 

57  Cal.    351;    59  Cal.    358;    68   Cal.    634;    118  Cal. 
448. 


671  TRIAL  JURY — POSTPONEMENT.  1046-1052 

CHAPTER  VIII. 

FORMATION  OF  THE  TRIAL  JURY  AND  THE  CALENDAR  OP 

ISSUES   FOR  TRIAL. 

Sec.    1046.    Formation    of   trial   jtirv. 

1047.  Clorlf   to    prepare   a    calendar. 

1048.  Order  of  dispcsing  of  issues  on  the  calendar. 

3049.    Defendant  entitled  to  two  days  to  prepare  for  trlaL 

Formation  of  trial  jury. 

1046.  Trial  juries  for  criminal  actions  are  formed  In  the 
same  manner  as  trial  juries  in  civil  actions. 

:  119    Cal.    622. 

Clerk   to   prepare   a   calendar. 

1047.  The  clerk  must  keep  a  calendar  of  all  criminal  actions 
pending  in  the  court,  enumerating  them  according  to  the  date 
of  the  filing  of  the  indictment  or  information,  specifying  opposite 
the  title  of  each  action  whether  it  is  for  a  felony  or  a  mis- 
demeanor, and  whether  the  defendant  is  in  custody  or  on  bail. 
[Amendment  af)proved  April  9,  1880;  amendments  1880,  p.  20. 
In  effect  April  9,  1880.] 

105  Cal.   512. 

Order  of  disposing  of  issues  on  tine  calendar. 

1048.  The  issues  on  the  calendar  must  be  disposed  of  in  the 
following  order,  unless  for  good  cause  the  court  shall  direct  an 
action  to  be  tried  out  of  its  order: 

1.  Prosecutions  for  felony,  when  the  defendant  is  in  custody. 

2.  Prosecutions  for  misdemeanor,  when  the  defendant  is  in 
custody. 

3.  Prosecutions  for  felony,  when  the  defendant  is  on  bail. 

4.  Prosecutions  for  misdemeanor,  when  the  defendant  is  on 
bail.  [Amendment  approved  April  9,  1880;  amendments  1880,  p. 
20.     In  effect  April  9,   1880.] 

Defendant  entitled  to  two  days  to  prepare  for  trial. 

1049.  After  his  plea,  the  defendant  is  entitled  to  at  least  two 
days  to  prepare  for  trial. 

CHAPTER  IX. 
POSTPONEMENT   OF    THE  TRIAL. 

Sec.    1052.    Postponement,    wlien,    and   how   ordered. 

Postponement,  when  and  how  ordered. 

1052.  When  an  action  is  called  for  trial,  or  at  any  time 
previous  thereto,  the  court  may,  upon  sufficient  cause,  direct 
the  trial  to  be  postponed  to  another  day.  [Amendment  approved 
April  9,  1880;  amendments  1880,  p.  20.     In  effect  April  9,  1880.] 

66    Cal.    396;    76   Cal.    342;    130    Cal.    76. 


1055-1057  PEWAL  CODE.  672 

TITLE  VII. 

OF  PROCEEDINGS  AFTER  THE  COMMENCEMENT  OF  THfl 
TRIAL   AND   BEFORE   JUDGMENT. 

Chapter  I.    Challenging  the  jury,  sections   1055-88. 
II.     The  trial,  sections  1093-1131. 

III.  Conduct   of   the   jury   after   cause   is   submitted   ta 

them,  sections  1135-43. 

IV.  The  verdict,  sections  1147-67. 

V.    Bills  of  exception,  sections  1170-6. 
VI.    New  trial,  sections  1179-82. 
VII.    Arrest  of  judgment,  sections  1185-8. 


CHAPTER  I. 
CHALLENGING  THE  JURY.   • 

Sec.    1055.  Definition  and   division  of   challenges. 

1056.  Defendants    cannot   sever   in    challenges. 

1057.  Panel   defined. 

1058.  Challenge  to  the  Jury  defined. 

1059.  Upon   what   founded. 

1060.  When   and  how  taken. 

1061.  Exception,  If  sufficiency  be  denied. 

1062.  If  exception  overruled,  court  may  allow  denial,  etc. 

1063.  Denial  of  challenge,  how  made,  and  trial  thereof. 

1064.  Challenge  for   bias   In   summoning  oflJce^ 

1065.  Proceedings,    If   challenge   allowed. 

1066.  Defendant  to  be  Informed  of  his  right  to   challenge. 

1067.  Kinds  of   challenges   to   individual  juror. 

1068.  Challenge,    when    taken. 

1069.  Peremptory  challenge,   what,  and  how  taken. 

1070.  Number  of  peremptory  challenges. 

1071.  Definition   and  kinds  of  challenge,   for  cause. 

1072.  General   causes  of  challenge. 

1073.  Particular    cause    of    challenge. 

1074.  Ground  of  challenge  for  Implied   bias. 

1075.  Exemption  not  a  ground  of  challenge. 

1076.  Causes  of  challenge,   how   stated. 

1077.  Exceptions  to   challenge   and  denial  thereof. 

1078.  Challenge,   how   tried. 

1081.  Juror  challenged  may  be  examined  as  a  witness. 

1082.  Rules   of  evidence  on   trial   of   challenge. 

1083.  Decision  of  court  to  be  entered. 

1086.  Challenges,  first  by  the  defendant. 

1087.  Order  of  challenges. 

1088.  Peremptoiy   challenges,    when   may  be  taken. 

1089.  Alternate   jurors. 

Definition  and  division  of  ciiallenges. 

1055.  A  challenge  is  an  objection  made  to  the  trial  Jurors, 
and  is  of  two  kinds: 

1.  To  the  panel; 

2.  To  an  individual  juror. 

Defendants  cannot  sever  in  challenges. 

1056.  When  several  defendants  are  tried  together  they  can- 
not sever  their  challenges,  but  must  join  therein. 

Panel   defined. 

1057.  The  panel  is  a  list  of  jurors  returned  by  a  sheriff,  to 
serve  at  a  particular  court  or  for  the  trial  of  a  particular 
action. 


673  CHALLENGING  THE  JURY.  1058-1065 

Challenge  to  the  jury  defined. 

1058.  A  challenge  to  the  panel  is  an  objection  made  to  all 
the  jurors  returned,  and  may  be  taken  by  either  party. 

Upon  what  founded. 

1059.  A  challenge  to  the  panel  can  be  founded  only  on  a 
material  departure  from  the  forms  prescribed  in  respect  to  the 
drawing  and  return  of  the  jury  in  civil  actions,  or  on  the  inten- 
tional omission  of  the  sheriff  to  summon  one  or  more  of  th© 
jurors  drawn. 

64    Cal.    382;    73    Cal.    360;    97    Cal.    176. 

When  and   how  taken. 

1060.  A  challenge  to  the  panel  must  be  taken  before  a  juror 
Is  sworn,  and  must  be  in  writing  or  be  noted  by  the  phono- 
graphic reporter,  and  must  plainly  and  distinctly  state  the  facts 
constituting  the  ground  of  challenge. 

127  Cal.    380. 

Exception,  if  sufficiency  of  the  challenge  be  denied. 

1061.  If  the  sufficiency  of  the  facts  alleged  as  ground  of  the 
challenge  is  denied,  the  adverse  party  may  except  to  the  chal- 
lenge. The  exception  need  not  be  in  writing,  but  must  be 
entered  on  the  minutes  of  the  court,  or  of  tae  phonographic 
reporter,  and  thereupon  the  court  must  proceed  to  try  the  suffi- 
ciency of  the  challenge,  assuming  the  facts  alleged  therein  to 
be  true. 

61     Cal.     549. 

If  exception  overruled,  court  may  allow  denial,  etc. 

1062.  If,  on  the  exception,  the  court  finds  the  challenge  suffi- 
cient, it  may,  if  justice  requires  it,  permit  the  party  excepting 
to  withdraw  his  exception,  and  to  deny  the  facts  alleged  in  the 
challenge.  If  the  exception  is  allowed,  the  court  may,  in  like 
manner,    permit  an   amendment  of  the   challenge. 

61     Cal.     549. 

Denial  of  challenge,  how  made,  and  trial  thereof, 

1063.  If  the  challenge  is  denied,  the  denial  may  be  oral,  and 
must  be  entered  on  the  minutes  of  the  court,  or  of  the  phono- 
graphic reporter,  and  the  court  must  proceed  to  try  the  question 
of  fact;  and  upon  such  trial,  the  officers,  whether  judicial  or 
ministerial,  whose  irregularity  is  complained  of,  as  well  as  any 
other  persons,  may  be  examined  to  prove  or  disprove  the  facts 
alleged  as  the  ground  of  the  challenge. 

Challenge   for   bias    in    summoning    officer. 

1064.  When  the  panel  is  formed  from  persons  whose  names 
are  not  drawn  as  jurors,  a  challenge  may  be  taken  to  the  panel 
on  account  of  any  bias  of  the  officer  who  summoned  them,  which 
would  be  good  ground  of  challenge  to  a  juror.  Such  challenge 
must  be  made  in  the  same  form,  and  determined  in  the  same 
manner,  as  if  made  to  a  juror. 

49  Cal.  177;  76  Cal.  346;  95  Cal.  427;  101  Cal. 
283;  108  Cal.  583;  116  Cal.  195;  122  Cal.  236; 
127  Cal.  380. 

Proceedings,    if   challenge    allowed. 

1065.  If,  either  upon  an  exception  to  the  challenge  or  a  denial 
of  the  facts,  the  challenge  is  allowed,  the  court  must  discharge 
the  jury  so  far  as  the  trial  in  question  is  concerned.  If  it  is 
disallowed,    the    court   must   direct   the   jury   to    be   impaneled. 


CRIMES--43 


1066-1073  PENAL  CODE.  674 

tAmendment  approved  April  9,  1880;    amendments  1880,  p.  20. 
In  effect  April  9,  1880.] 

73    Cal.    360. 

Defendant  to  be  informed  of  his  right  to  challenge. 

1066.  Before  a  juror  is  called,  the  defendant  must  be  informed 
by  the  court,  or  under  its  direction,  that  if  he  intends  to  chal- 
lenge an  individual  juror  he  must  do  so  when  the  juror  appears, 
and  before  he  is  sworn. 

58  Cal.    266;    76    Cal.    346;    88    Cal.    418;    92   Cal. 
596;     102    Cal.     231;    103    Cal.    510. 

Kinds  of  challenges  to  individual  juror. 

1067.  A  challenge  to  an  individual  juror  is  either: 

1.  Peremptory;   or, 

2.  For  cause. 

Challenge,   when   taken. 

1068.  It  must  be  taken  when  the  juror  appears,  and  before 
he  is  sworn  to  try  the  cause;  but  the  court  may  for  cause  permit 
it  to  be  taken  after  the  juror  is  sworn,  and  before  the  jury  is 
completed. 

47  Cal.  122;   53  Cal.   577;  76  Cal.   347;  87  Cal.   120; 
lOa   Cal.    338;    116    Cal.    197;    123   Cal.    488. 

Peremptory    challenge,   what,   and    how   taken. 

1069.  A  peremptory  challenge  can  be  taken  by  either  party, 
and  may  be  oral.  It  is  an  objection  to  a  juror  for  which  no 
reason  need  be  given,  but  upon  which  the  court  must  exclude 
him. 

Number  of  peremptory  challenges. 

1070.  If  the  offense  charged  be  punishable  with  death,  or 
with  Imprisonment  in  the  state  prison  for  life,  the  defendant  is 
entitled  to  twenty  and  the  state  to  ten  peremptory  challenges. 
On  a  trial  for  any  other  offense,  the  defendant  is  entitled  to  ten 
and  the  state  to  five  peremptory  challenges.  [Amendment  ap- 
proved March  30,  1874;  amendments  1873-4,  p.  441.  In  effect 
July  1,  1874.] 

59  Cal.    441;    61   Cal.    137:    61  Cal.    436;   109   Cal. 

259;    132   Cal.    94. 

Definition   and   kinds  of  challenge,  for  cause. 

1071.  A  challenge  for  cause  may  be  taken  by  either  party. 
It  is  an  objection  to  a  particular  juror,  and  is  either: 

1.  General — that  the  juror  is  disqualified  from  serving  in  any 
case;   or, 

2.  Particular — that  he  is  disqualified  from  serving  in  th» 
action  on  trial. 

70  Cal.    11. 

General  causes  of  challenge. 

1072.  General  causes  of  challenge  are: 

1.  A  conviction  for  felony; 

2.  A  want  of  any  of  the  qualifications  prescribed  by  law 
to  render  a  person  a  competent  juror; 

3.  Unsoundness  of  mind,  or  such  defect  in  the  faculties  of 
the  mind  or  organs  of  the  body  as  renders  him  incapable  of 
performing  the  duties  of  a  juror. 

61    Cal.    553;    119    Cal.    621;    123    Cal.    487.  Ses 

Particular   cause   of   challenge. 

1073.  Particular  causes  of  challenge  are  of  two  kinds: 
First — For  such  a  bias  as,  when  the  existence  of  the  facts  ii 


675  CHALLENGING  THE  JURY.  1074-1076 

ascertained,  in  judgment  of  law  disqualifies  the  juror,  and  which 
is  known  in  this  Code  as  implied  bias. 

Second — For  the  existence  of  a  state  of  mind  on  the  part  of  the 
juror  in  reference  to  the  case,  or  to  either  of  the  parties,  which 
will  prevent  him  from  acting  with  entire  impartiality  and  with- 
out prejudice  to  the  substantial  rights  of  either  party,  which  is 
known  in  this  code  as  actual  bias.  [Amendment  approved 
March  30,  1874;  amendments  1873-4,  p.  441.  In  effect  July  1, 
1874.1 

49  cm.  168;  49  Cal.  177;  61  Cal.  553;  62  Cal.  879; 

96  Cal.   127;   100  Cal.   229;  US  Cal.    195;   123  Cal. 

486. 

Ground  of  challenge  for  implied  bias. 

1074.  A  challenge  for  implied  bias  may  be  taken  for  all  or 
any  of  the  following  causes,  and  for  no  other: 

1.  Consanguinity  or  affinity  within  the  fourth  degree  to  the 
person  alleged  to  be  injured  by  the  offense  charged,  or  on  whose 
complaint  the  prosecution  was  instituted,  or  to  the  defend- 
ant. 

2.  Standing  in  the  relation  of  guardian  ana  ward,  attorney 
and  client,  master  and  servant,  or  landlord  ana  tenant,  or  being 
a  member  of  the  family  of  the  defendant,  or  of  the  person 
alleged  to  be  injured  by  the  offense  charged,  or  on  whose  com- 
plaint the  prosecution  was  instituted,  or  in  his  employment  on 
wages. 

3.  Being  a  party  adverse  to  the  defendant  in  a  civil  action, 
or  having  complained  against  or  been  accused  by  him  in  a 
criminal  prosecution. 

4.  Having  served  on  the  grand  jury  which  found  the  indict- 
ment, or  on  a  coroner's  jury  which  inquired  into  the  death  of  a 
person  whose  death  is  the  subject  of  the  indictment  or  infor- 
mation. 

5.  Having  served  on  a  trial  jury  which  has  tried  another 
person   for  the  offense  charged. 

6.  Having  been  one  of  a  jury  formerly  sworn  to  try  the  same 
charge,  and  whose  verdict  was  set  aside,  or  which  was  dis- 
charged without  a  verdict,  after  the  case  was  submitted  to  it. 

7.  Having  served  as  a  juror  in  a  civil  action  brought  against 
the   defendant  for  the   act  charged  as   an  offense. 

8.  If  the  offense  charged  be  punishable  with  death,  the  emter- 
taining  of  such  conscientious  opinions  as  would  preclude  his 
finding  the  defendant  guilty;  in  which  case  he  must  neither 
be  permitted  nor  compelled  to  serve  as  a  juror.  [Amendment 
approved  April  9,  1880;  amendments  1880,  p.  20.  In  effect  April 
9,  1880.] 

49  Cal.  169;  49  Cal.  178;  59  Cal.  355;  61  Cal.  549; 
62  Cal  380;  65  Cal.  148;  76  Cal.  346;  116  Cal. 
509;  117  Cal.  666;  119  Cal.  621. 

Exemption  not  a  ground  of  challenge. 

1075.  An  exemption  from  service  on  a  jury  Is  not  a  cause 
of  challenge,   but  the  privilege  of  the  person  exempted. 

123    Cal.     486. 

Causes  of  challenge,   how  stated. 

1076.  In  a  challenge  for  implied  bias,  one  or  more  of  the 
causes  stated  in  section  ten  hundred  and  seventy-four  must  be 
alleged.  In  a  challenge  for  actual  bias,  the  cause  stated  in  the 
second   subdivision  of  section    ten    hundred   and   seventy-three 


1077-1087  PENAL  CODE.  G76 

must  be  alleged;  but  no  person  shall  be  disqualified  as  a  juror 
by  reason  of  having  formed  or  expressed  an  opinion  upon  the 
matter  or  cause  to  be  submitted  to  such  jury,  founded  upon 
public  rumor,  statements  in  public  journals,  or  common  notor- 
iety; provided  it  appear  to  the  court,  upon  his  declaration, 
under  oath  or  otherwise,  that  he  can  and  will,  notwithstanding 
such  an  opinion,  act  impartially  and  fairly  upon  the  matters 
to  be  submitted  to  him.  The  challenge  may  be  oral,  but  must 
be  entered  in  the  minutes  of  the  court  or  of  the  phonographic 
reporter.  [Amendment  approved  March  30,  1874;  amendments 
1873-4,  p.  443.     In  effect  July  1,  1874.] 

59  Cal.  354;  61  Cal.  549;  100  Cal.  229;  105  Cal. 
5(12;  108  Cal.  583;  124  Cal.  317;  125  Cal.  46. 

Exceptions  to  challenge  and  denial  thereof. 

1077.  The  adverse  party  may  except  to  the  challenge  in  the 
same  manner  as  to  a  challenge  to  the  panel,  and  the  same  pro- 
ceedings must  be  had  thereon  as  are  prescribed  in  section 
1061,  except  that  if  the  exception  be  allowed  the  juror  must  be 
excluded.  The  adverse  party  may  also  orally  deny  the  facts 
allegfed  as  the  ground  of  challenge. 

61    Cal.    549. 

Challenge,  how  tried. 

1078.  If  the  facts  are  denied,  the  challenge  must  be  tried  by 
the  court.  [Amendment  approved  March  30,  1874;  amendments 
1873-4,  p.  443.     In  effect  July  1,  1874.] 

Juror  challenged  may  be  examined  as  a  witness. 

1081.  Upon  the  trial  of  a  challenge  to  an  individual  juror, 
the  juror  challenged  may  be  examined  as  a  witness  to  prove 
or  disprove  the  challenge,  and  must  answer  every  question  per- 
tinent to  the  inquiry. 

Rules  of  evidence  on  trial  of  challenge. 

1082.  Other  witnesses  may  also  be  examined  on  either  side, 
and  the  rules  of  evidence  applicable  to  the  trial  of  other  issues 
govern  the  admission  or  exclusion  of  evidence  on  the  trial  of 
the  challenge. 

Decision   of  court  to   be  entered. 

1083.  The  court  must  allow  or  disallow  the  challenge,  and  its 
decision  must  be  entered  in  the  minutes  of  the  court.  [Amend- 
ment approved  March  30,  1874;  amendments  1873-4,  p.  443.  In 
effect  July  1.  1874.] 

Challenges,  first  by  the  defendant. 

1086.  All  challenges  to  an  individual  juror,  except  peremptory, 
must  be  taken,  first  by  the  defendant,  and  then  by  the  people, 
and  each  party  must  exhaust  all  his  challenges  before  the  other 
begins. 

Order  of  challenges. 

1087.  The  challenges  of  either  party  for  cause  need  not  all  be 
taken  at  once,  but  they  must  be  taken  separately,  in  the  fol- 
lowing order,  including  in  each  challenge  allj  the  causes  of  chal- 
lenge belonging  to  the  same  class: 

1.  To  the  panel; 

2.  To  an  individual  juror,  for  a  general  disqualification; 

3.  To  an  individual  juror,  for  an  implied  bias; 

4.  To  an  individual  juror,  for  an  actual  bias. 


677  CHALLBNGING  THE  JURY.  1088-1089 

Peremptory    challenges,    when    may    be    taken. 

1088.  If  all  challenges  on  both  sides  are  disallowed,  either 
party,  first  the  people  and  then  the  defendant,  may  take  a 
peremptory  challenge,  unless  the  parties'  peremptory  challenges 
are  exhausted. 

48   Cal.    559;    65    Cal.    148;    96   Cal.    318. 

Alternate  jurors. 

1089.  Whenever,  in  the  opinion  of  a  judge  of  a  Superior  Court 
about  to  try  a  defendant  against  whom  has  been  filed  any  indict- 
m.ent  or  information  for  a  felony,  the  trial  is  likely  to  be  a  pro- 
tracted one,  the  court  may  cause  an  entry  to  that  effect  to  be 
made  in  the  minutes  of  the  court,  and  thereupon,  immediately 
after  the  jury  is  impaneled  and  sworn,  the  court  may  direct  the 
calling  of  one  or  two  additional  jurors,  in  its  discretion,  to  be 
known  as  "alternate  jurors."  Such  jurors  must  be  drawn  from 
the  same  source,  and  in  the  same  manner,  and  have  the  same 
qualifications  as  the  jurors  already  sworn,  and  be  subject  to 
the  same  examination  and  challenges;  provided,  that  the  pros- 
ecution shall  be  entitled  to  one,  and  the  defendant  to  two,  per- 
emptory challenges  to  such  alternate  jurors.  Such  alternate 
jurors  shall  be  seated  near,  with  equal  power  and  facili- 
ties for  seeing  and  hearing  the  proceedings  in  the  case, 
and  shall  take  the  same  oath  as  the  jurors  already  selected, 
and  must  attend  at  all  times  upon  the  trial  of  the 
cause  in  company  with  the  other  jurors;  and  for  a  failure  so 
to  do  are  liable  to  be  punished  for  contempt.  They  shall  obey 
the  orders  of  and  be  bound  by  the  admonition  of  the  court  upon 
each  adjournment  of  the  court;  but  if  the  regular  jurors  are 
ordered  to  be  kept  in  the  custody  of  the  sheriff  during  the  trial 
of  the  cause,  such  alternate  jurors  shall  also  be  kept  in  con- 
finement with  the  other  jurors;  and  except,  as  hereinafter  pro- 
vided, shall  be  discharged  upon  the  final  submission  of  the  case 
to  the  jury.  If,  before  the  final  submission  of  the  case,  a  juror 
die,  or  become  ill,  so  as  to  be  unable  to  perform  his  duty,  the 
court  may  order  him  to  be  discharged  and  draw  the  name  of  an 
alternate,  who  shall  then  take  his  place  in  the  jury-box,  and  be 
subject  to  the  same  rules  and  regulations  as  though  he  had  been 
selected  as  one  of  the  original  jurors.  [New  section  approved 
March  28,  1895;   stats.  1895,  p.  279.     In  effect  March  28,  1895.] 


1093  PENAL  CODE.  678 

CHAPTER  11. 
THE  TRIAL. 

Sec.    1093.  Order   of   trial. 

1094.  When   order  of  trial   may   be  departed   from. 

1095.  Number  of  counsel   who  maj'  argue  the  case. 

1096.  Defendant  presumed   innocent.      Reasonable   doubt. 

1097.  Reasonable   doubt   as  to   degree  convicts  only   of   lowest. 

1098.  Separate    trials. 

1099.  Discharging  defendant   that   he   may  be  a   witness. 

1100.  Same. 

1101.  ECfect    of    such    discharge. 

1102.  Rules   of  evidence   In    civil    applicable   to   criminal    cases. 

1103.  Evidence  on  trial  for  treason. 

1104.  Evidence  on  trial   for  conspiracy. 

1105.  When  burden  of  proof  shifts  in  trials  for  murder. 

1106.  Evidence  on  a  trial  for  bigamy. 

1107.  Evidence   upon   a   trial   for   forging   bank  bills,   etc. 

1108.  Evidence   upon   trial   for  abortion   and   seduction. 

1109.  Evidence  on  trial   for  selling,   etc.,   lottery  tickets. 

1110.  Evidence   of  false   pretenses. 

1111.  Conviction  on  testimony  of  accomplice. 

1113.  Discharge  Jury  for  lack  of  jurisdiction,  etc. 

1114.  Proceedings,   if  jury  discharged   for   want  of  jurisdiction  of 

offense  committed  out  of  the  state. 

1115.  Proceedings   in    such   case,    when   offense   committed    in    the 

state. 

1116.  Same. 

1117.  Proceedings,    if   jury    discharged    because    the    facts   do    not 

constitute  an  offense. 

1118.  When    evidence    on   either  side   is   closed,    court   may   advise 

jury  to  acquit. 

1119.  View  of  premises,   when  ordered,  and  how  conducted. 

1120.  Knowledge  of  juror  to  be  declared   in  court,   and  he  to  be 

sworn  as  a  witness. 

1121.  Jurors,   separation   of,  during  trial. 

1122.  Jury,   at   each   adjournment,   must   be   admonished,   etc. 

1123.  Juror  unable  to  perform  his   duties,    proceedings. 

1124.  Court  to  decide  questions  of  law  arising  during  trial. 

1125.  On  indictment  for  libel,  jury  to  determine  law  and  fact. 

1126.  In  all  other  cases  court  to  decide  questions  of  law. 

1127.  Charging  the  jury. 

1128.  Jury  may  decide  in  court,  or  retire  in  custody  of  officers. 

1129.  Defendant  appearing  for  trial  may  be  committed. 

1130.  If  district  attorney  fails  to  attend,    court   may   appoint. 

1131.  Allegations   of   larceny    or   embezzlement,    when   sustalncl. 

Order  of  trial. 

1093.  The  jury  having  been  impaneled  and  sworn,  the  trial 
must  proceed  in  the  following  order,  unless  otherwise  directed 
by  the  court: 

1.  If  the  indictment  or  information  be  for  felony,  the  clerk 
must  read  it,  and  state  the  plea  of  the  defendant  to  the  jury, 
and  in  cases  where  it  charges  a  previous  conviction,  and  the 
defendant  has  confessed  the  same,  the  clerk  in  reading  it  shall 
omit  therefrom  all  that  relates  to  such  previous  conviction.  In 
all  other  cases  this  formality  may  be  dispensed  with. 

2.  The  district  attorney,  or  other  counsel  for  the  people, 
must  open  the  cause  and  offer  the  evidence  in  support  of  the 
charge. 

3.  The  defendant  or  his  counsel  may  then  open  the  defense, 
and   offer  his  evidence   in  support  thereof. 

4.  The  parties  may  then  respectively  offer  rebutting  tes- 
timony only,  unless  the  court,  for  good  reason,  in  furtherance 
of  justice,  permit  them  to  offer  evidence  upon  their  original 
case. 

5.  When  the  evidence  is  concluded,  unless  the  case  is  sub- 
mitted to  the  jury  on  either    side,    or  on   both   sides,   without 


679  THK  'J  KiAL.  1094-1099 

argument,  the  district  attorney,  or  other  counsel  for  the  people, 
and  counsel  for  the  defendant,  may  argue  the  case  to  the  court 
and  jury;  the  district  attorney,  or  other  counsel  for  the  people, 
opening  the  argument    and   having  the  right  to  close. 

6.  The  judge  may  then  charge  the  jury,  and  must  do  so  on 
any  points  pertinent  to  the  issue,  if  requested  by  either  party; 
and  he  may  state  the  testimony  and  declare  the  law.  If  the 
charge  be  not  given  in  w^riting,  it  must  be  taken  down  by  the 
phonographic  reporter.  [Amendment  approved  April  9,  1880; 
amendments   1880,  p.  21.     In  effect  April  9,   1880.] 

46  Cal.  652;  46  Cal.  117;  46  Cal.  303;  53  Cal.  494; 
53  Cal.  575;  55  Cal.  298;  57  Cal.  99;  57  Cal.  317; 

57  Cal.  560;  58  Cal.  269;  66  Cal.  127;  65-  Cal. 
297:  66  Cal.  456;  73  Cal.  447;  73  Cal.  517;  73 
Cal.  549;  76  Cal.  59;  76  Cal.  282;  76  Cal.  348; 

84  Cal.  450;  85  Cal  570;  88  Cal.  117;  88  Cal. 
141;  88  Cal.  175;  88  Cal.  177;  103  Cal.  571;  105 
Cal.  502;  110  Cal.  42;  116  Cal.  686;  118  al.  390, 
118  Cal.  329;  131  Cal.  653. 

When  order  of  trial  may  be  departed  from. 

1094.  When  the  state  of  the  pleadings  requires  it,  or  in  any 
other  case,  for  good  reasons,  and  in  the  sound  discretion  of  the 
court,  the  order  prescribed  in  the  last  section  may  be  departed 
from. 

85  Cal.    570;    103    Cal.    571. 

Number  of  counsel  who  may  argue  the  case. 

1095.  If  the  indictment  or  information  be  for  an  offense 
punishable  with  death,  two  counsel  on  each  side  may  argue  the 
cause  to  the  jury.  If  it  be  for  any  other  offense,  the  court  may, 
in  its  discretion,  restrict  the  argument  to  one  counsel  on  each 
side.  [Amendment  approved  April  9,  1880;  amendments  1880,  p. 
21.    In  effect  April   9,   1880.] 

48  Cal.  238;  53  Cal.  567;  55  Cal.  298;  65  Cal.  127; 
75   Cal.    348;    122   Cal.    69. 

Defendant  presumed  innocent.     Reasonable  doubt. 

1096.  A  defendant  in  a  criminal  action  is  presumed  to  be 
innocent  until  the  contrary  is  proved,  and  in  case  of  a  reason- 
able doubt  whether  his  guilt  is  satisfactorily  shown,  he  is 
entitled  to  an  acquittal. 

58  Cal.  268;  71  Cal.  8;  84  Cal.  33;  84  Cal.  456; 
122    Cal.     141.  • 

Reasonable  doubt  as  to  degree  convicts  only  of  lowest. 

1097.  When  it  appears  that  the  defendant  has  committed 
a  public  offense,  and  there  is  reasonable  ground  of  doubt  in 
which  of  two  or  more  degrees  he  is  guilty,  he  can  be  convicted 
of  the  lowest  of  such  degrees  only. 

58  Cal.   268;   68  Cal.   180;  71  Cal.   8;  118  Cal.   270. 

Separate  trials. 

1098.  When  two  or  more  defendant  are  jointly  charged  with  a 
felony,  any  defendant  requiring  it  must  be  tried  separately.  In 
other  cases  the  defendants  jointly  charged  may  be  tried  sepa- 
rately or  jointly  in  the  discretion  of  the  court.  [Amendment 
approved  April  9,  1880;  amendments  1880,  p.  22.  In  effect  April 
9,  1880.] 

121    Cal.     162. 

Discharging  defendant  that  he  may  be  a  witness. 

1099.  When  two  or  more  persons  are  included  in  the  same 
charge,  the  court  may,  at  any  time  before  the  defendants  have 


1100-1105  PENAL  CODE.  680 

gone  into  their  defense,  on  the  application  of  the  district  attor- 
ney, direct  any  defendant  to  be  discharged,  that  he  may  be  a 
witness  for  the  people.  [Amendment  approved  April  9,  1880; 
amendments  1880,  p.  22.     In  effect  April  9,  1880.] 

48    Cal.     253;    70    Cal.    55;    110    Cal.    611. 

Same. 

1100.  When  two  or  more  persons  are  included  in  the  same 
Indictment  or  information,  and  the  court  is  of  opinion  that  In 
regard  to  a  particular  defendant  there  is  not  sufficient  evidence 
to  put  him  on  his  defense,  it  must  order  him  to  be  discharged 
before  the  evidence  is  closed,  that  he  may  be  a  witness  for  his 
codefendant.  [Amendment  approved  April  9,  1880;  amendments 
1880,   p.  22.    In  effect  April   9,   1880.] 

70    Cal.    55. 

Effect  of  such  discharge. 

1101.  The  order  mentioned  in  the  last  two  sections  is  an 
acquittal  of  the  defendant  discharged,  and  is  a  bar  to  another 
prosecution  for  the  same  offense. 

48  Cal.    253;    70    Cal.    53. 

Rules  of  evidence  in  civil  cases  applicable  to  criminal  cases. 

1102.  The  rules  of  evidence  in  civil  actions  are  applicable 
also  to  criminal  actions,  except  as  otherwise  provided  in  this 
code. 

57  Cal.  568;  &7  Cal.  573;  58  Cal.  214;  64  Cal.  259; 
98  Cal.  131;  104  Cal.  487;  120  Cal.  666;  123  Cal. 
563;  132  Cal.  201;;  132  Cal.  263. 

Evidence  on  trial  for  treason. 

1103.  Upon  a  trial  for  treason,  the  defendant  cannot  be  con- 
victed unless  upon  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  upon  confession  in  open  court;  nor  can  evidence 
be  admitted  of  an  overt  act  not  expressly  charged  in  the  indict- 
ment or  information;  nor  can  the  defendant  be  convicted  unless 
one  or  more  overt  acts  be  expressly  alleged  therein.  [Amend- 
ment approved  April  9,  1880;  amendments  1880,  p.  22.  In  effect 
April   9,  1880.] 

68    Cal.     180. 

Evidence    on    trial    for   conspiracy. 

1104.  Upon  a  trial  for  conspiracy,  in  a  case  where  an  overt 
act  is  necessary  to  constitute  the  offense,  the  defendant  cannot 
be  convicted  unless  one  or  more  overt  acts  are  expressly 
alleged  in  the  indictment  or  information,  nor  unless  one  of  the 
acts  alleged  is  proved;  but  other  overt  acts  not  alleged  may  be 
given  in  evidence.  [Amendment  approved  April  9,  1880;  amend- 
ments 1880,  p.  22.     In  effect  April  9,  1880.] 

68    Cal.     180. 

When   burden  of  proof  shifts  in   trials  for  murder. 

1105.  Upon  a  trial  for  murder,  the  commission  of  the  homi- 
cide by  the  defendant  being  proved,  the  burden  of  proving  cir- 
cumstances of  mitigation,  or  that  justify  or  excuse  it,  devolves 
upon  him,  unless  the  proof  on  the  part  of  the  prosecution  tends 
to  show  that  the  crime  committed  only  amounts  to  manslaughter, 
or  that  the  defendant  was  justifiable  or  excusable. 

49  Cal.  7:  58  Cal.  251;  61  Cal  394;  61  Cal.  528; 
65  Cal.  103;  67  Cal.  428;  69  Cal.  604;  71  Cal.  4: 

50  Cal.  45;  80  Cal.  163;  80  Cal.  304;  83  Cal.  382; 
86  Cal.  146;  86  Cal.  227;  88  Cal.  239;  88  Cal.  423; 
89  Cal.  500:  93  Cal.  443;  94  Cal.  47;  98  Cal.  653; 
105  Cal.  34;  115  Cal.  246;  118  Cal.  271;  122  Cal. 
178;  128  Cal.  95;  131  Cal.  655. 


€81  THE  TRIAL.  1106-1110 

Evidence  on   a  trial   for  bigamy. 

1106.  Upon  a  trial  for  bigamy,  it  is  not  necessary  to  prove 
either  of  the  marriages  by  the  register,  certificate,  or  other 
record  evidence  thereof,  but  the  same  may  be  proved  by  such 
evidence  as  is  admissible  to  prove  a  marriage  in  other  cases; 
and  when  the  second  marriage  took  place  out  of  this  state,  proof 
of  that  fact,  accompanied  with  proof  of  cohabitation  thereafter  in 
this  state,  is  sufficient  to  sustain  the  charge. 

■ 71    Cal.    265;    99    Cal.    289;    130    Cal.    489. 

Evidence  upon  a  trial  for  forging  bank  bills,  etc. 

1107.  Upon  a  trial  for  forging  any  bill  or  note  purporting 
to  be  the  bill  or  note  of  an  incorporated  company  or  bank,  or  for 
passing,  or  attempting  to  pass,  or  having  in  possession  witn 
intent  to  pass,  any  such  forged  bill  or  note,  it  is  not  necessary 
to  prove  the  incorporation  of  such  bank  or  company  by  the 
charter  or  act  of  incorporation,  but  it  may  be  proved  by  general 
reputation;  and  persons  of  skill  are  competent  witnesses  to 
prove  that  such  bill  or  note  is  forged  or  counterfeited. 

Evidence  upon  trial  for  abortion   and  seduction. 

1108.  Upon  a  trial  for  procuring  or  attempting  to  procure 
an  abortion,  or  aiding  or  assisting  therein,  or  for  inveigling, 
enticing,  or  taking  away  an  unmarried  female  of  previous  chaste 
character,  under  the  age  of  twenty-five  years,  for  the  purpose 
of  prostitution,  or  aiding  or  assisting  therein,  the  defendant 
cannot  be  convicted  upon  the  testimony  of  the  woman  upon  or 
with  whom  the  offense  was  committed,  unless  she  is  corroborated 
by   other   evidence. 

68    Cal.    ISO;    118    Cal.    674. 

Evidence  on  trial  for  selling,  etc.,  lottery  tickets. 

1109.  Upon  a  trial  for  the  violation  of  any  of  the  provisions 
of  chapter  IX,  title  IX,  part  I  of  this  code,  it  is  not  nec- 
essary to  prove  the  existence  of  any  lottery  in  which  any  lottery 
ticket  purports  to  have  been  issued,  or  to  prove  the  actual  sign- 
ing of  any  such  ticket  or  share,  or  pretended  ticket  or  share, 
of  any  pretended  lottery,  nor  that  any  lottery  ticket,  share,  or 
interest  was  signed  or  issued  by  the  authority  of  any  manager, 
or  of  any  person  assuming  to  have  authority  as  manager;  but  in 
all  cases  proof  of  the  sale,  furnishing,  bartering,  or  procuring 
of  any  ticket,  share,  or  interest  therein,  or  of  any  instrument 
purporting  to  be  a  ticket,  or  part  or  share  of  any  such  ticket, 
is  evidence  that  such  share  or  interest  was  signed  and  issued 
according  to  the  purport  thereof. 

Evidence  of  false  pretenses. 

1110.  Upon  a  trial  for  having,  with  an  intent  to  cheat  or 
defraud  another  designedly,  by  any  false  pretense,  obtained  the 
signature  of  any  person  to  a  written  instrument,  or  having 
obtained  from  any  person  any  money,  personal  property,  or 
valuable  thing,  the  defendant  cannot  be  convicted  if  the  false 
pretense  was  expressed  in  language,  unaccompanied  by  a  false 
token  or  writing,  unless  the  pretense,  or  some  note  or  mem- 
orandum thereof,  be  in  writing,  subscribed  by  or  in  tne  hand- 
writing of  the  defendant,  or  unless  the  pretense  be  proven  by 
the  testimony  of  two  witnesses,  or  that  of  one  witness,  and 
corroborating  circumstances;  but  this  section  shall  not  apply 
to  a  prosecution  for  falsely  representing  or  personating  another, 


1111-1116  PENAL  CODE.  682 

and,   in   such   assumed   character,   marrying,   or   receiving  any 
money  or  property. 

68  Cal.  180;  70  Cal.  118;  98  Cal.  663;  102  Cal. 
664;     127    Cal.     207. 

Conviction  on  testimony  of  accomplice. 

1111.  A  conviction  cannot  be  had  on  the  testimony  of  an 
accomplice,  unless  he  is  corroborated  by  other  evidence  which 
in  itself,  and  without  the  aid  of  the  testimony  of  the  accom- 
plice, tends  to  connect  the  defendant  with  the  commission  of  the 
offense;  and  the  corroboration  is  not  sufficient,  if  it  merely 
shows  the  commission  of  the  offense,  or  the  circumstances 
thereof. 

49  Cal.  630;  60  Cal.  450;  50  Cal.  481;  53  Cal.  602; 
53  Cal.  607;  65  Cal.  307;  68  Cal.  180;  69  Cal. 
13;  71  Cal.  19;  72  Cal.  460;  73  Cal.  348;  84  Cal. 
481;  89  Cal  498;  96  Cal.  181;  98  Cal.  218;  98  Cal. 
280;  99  Cal.  576;  111  Cal.  14;  114  Cal.  673;  114 
Cal.  634;  121  Cal.  557;  122  Cal.  502;  123  Cal. 
406. 

Discharge  jury  for  lack  of  jurisdiction,  etc. 

1113.  The  court  may  direct  the  jury  to  be  aischarged  where 
it  appears  that  it  has  not  jurisdiction  of  the  offense,  or  that 
the  facts  charged  do  not  constitute  an  offense  punishable  by 
law.  [Amendment  approved  April  9,  1880;  amendments  1880, 
p.  22.     In  effect  April  9,  1880.1 

Proceedings,  if  jury  discharged  for  want  of  jurisdiction  of  offense 
committed  out  of  the  state. 

1114.  If  the  jury  be  discharged  because  y...e  court  has  not 
jurisdiction  of  the  offense  charged,  and  it  appear  that  it  was 
committed  out  of  the  jurisdiction  of  this  state,  the  defendant 
must  be  discharged.  [Amendment  approved  April  9,  1880; 
amendments  1880,  p.  22.    In  effect  April  9,  1880.] 

Proceedings  in  such  case,  when  offense  committed  in  the  state. 

1115.  If  the  offense  was  committed  within  the  exclusive 
jurisdiction  of  another  county  of  this  state,  the  court  must 
direct  the  defendant  to  be  committed  for  such  time  as  it  deems 
reasonable,  to  await  a  warrant  from  the  proper  county  for  his 
arrest;  or  if  the  offense  is  a  misdemeanor  only,  it  may  admit 
him  to  bail  in  an  undertaking,  with  sufficient  sureties,  that  he 
will,  within  such  time  as  the  court  may  appoint,  render  himself 
amenable  to  a  warrant  for  his  arrest  from  the  proper  county; 
and,  if  not  sooner  arrested  thereon,  will  attend  at  the  office 
of  the  sheriff  of  the  county  where  the  trial  was  had.  at  a  certain 
time  particularly  specified  in  the  undertaking,  to  surrender  him- 
self upon  the  warrant,  if  issued,  or  that  his  bail  will  forfeit 
such  sum  as  the  court  may  fix,  to  be  mentioned  in  the  under- 
taking; and  the  clerk  must  forthwith  transmit  a  certified  copy 
of  the  indictment  or  information,  and  of  all  the  papers  filed  in 
the  action,  to  the  district  attorney  of  the  proper  county,  the 
expense  of  which  transmission  is  chargeable  to  that  county. 
[Amendment  approved  April  9,  1880;  amendments  1880,  p.  22. 
In  effect  April  9,  1880.] 

Same. 

1116.  If  the  defendant  is  not  arrested  on  a  warrant  from  the 
proper  county,  as  provided  in  section  1115,  he  must  be  dis- 
charged from  custody,  or  his  bail  in  the  action  is  exonerated,  or 
money  deposited  Instead  of  bail  must  be  refunded,  as  the  case 


683  .    THE  TRIAL.  1117-1120 

may  be,  and  the  sureties  in  the  undertalting,  as  mentioned  In 
that  section,  must  be  discharged.  If  he  is  arrested,  the  same 
proceedings  must  be  had  thereon  as  upon  the  arrest  of  a  defend- 
ant in  another  county  on  a  warrant  of  arrest  issued  by  a  magris- 
trate. 

Proceedings,   if  jury  discharged   because  the  facts  do  not  con- 
stitute an  offense. 

1117.  If  the  jury  is  discharged  because  the  facts  as  charged 
do  not  constitute  an  offense  punishable  by  law,  the  court  must 
order  that  the  defendant,  if  in  custody,  be  discharged;  or  if 
admitted  to  bail,  that  his  bail  be  exonerated;  or  if  he  has 
deposited  money  instead  of  bail,  that  the  money  be  refunded  to 
him,  unless  in  its  opinion  a  new  indictment  or  information  can 
be  framed  upon  which  the  defendant  can  be  legally  convicted, 
in  which  case  it  may  direct  the  district  attorney  to  file  a  new 
information,  or  (if  the  defendant  has  not  been  committed  by  a 
magistrate)  direct  that  the  case  be  submitted  to  the  same  or 
another  grand  jury;  and  the  same  proceedings  must  be  had 
thereon  as  are  prescribed  in  section  nine  hundred  and  ninety- 
eight;  provided,  that  after  such  order  or  submission  the  defend- 
ant may  be  examined  before  a  magistrate,  and  discharged  or 
committed  by  him  as  in  other  cases.  [Amendment  approved 
April  9,  1880;   amendments  1880,  p.  23.     In  effect  April  9,  1880. J 

64    Cal.     263;     118    Cal.     27. 

When  evidence  on  either  side  is  closed,  court  may  advise  jury 
to  acquit. 

1118.  If,  at  any  time  after  the  evidence  on  either  side  is 
closed,  the  court  deems  it  insufficient  to  warrant  a  conviction,  it 
may  advise  the  jury  to  acquit  the  defendant.  But  the  jury  are 
not  bound  by  the  advice. 

70  Cal.  18;  97  Cal.  401;  105  Cal.  266;  114  Cal. 
68;  118  Cal.  28;  124  Cal.  553;  132  Cal.  501. 

View  of  premises,  when  ordered,  and  how  conducted. 

1119.  When,  in  the  opinion  of  the  court,  it  is  proper  that  the 
jury  should  view  the  place  in  which  the  offense  is  charged  to 
have  been  committed,  or  in  which  any  other  material  fact 
occurred,  it  may  order  the  jury  to  be  conducted  in  a  body,  In  the 
custody  of  the  sheriff,  to  the  place,  which  must  be  shown  to  them 
by  a  person  appointed  by  the  court  for  that  purpose;  and  the 
sheriff  must  be  sworn  to  suffer  no  person  to  speak  or  commu- 
nicate with  the  jury,  nor  to  do  so  himself,  on  any  subject  con- 
nected with  the  trial,  and  to  return  them  into  court  without 
unnecessary  delay,  or  at  a  specified  time. 

53    Cal.    61;    68    Cal.    625;    71    Cal.    606;    80    Cal 
539;    122    Cal.    183. 

Knowledge  of  juror  to  be  declared  in  court,  and  he  to  be  sworn 
as  a  witness. 

1120.  If  a  juror  has  any  personal  knowledge  respecting  a  fact 
in  controversy  in  a  cause,  he  must  declare  the  same  in  open 
court  during  the  trial.  If,  during  the  retirement  of  the  jury,  a 
juror  declare  a  fact  which  could  be  evidence  in  the  cause,  as  of 
his  own  knowledge,  the  jury  must  return  into  court.  In  either 
of  these  cases,  the  juror  making  the  statement  must  be  sworn 
as  a  witness  and  examined  in  the  presence  of  the  parties. 


1121-1127  PENAL  CODE.  684 

Jurors,  separation  of,  during  trial. 

1121.  The  jurors  sworn  to  try  an  action  may,  at  any  time 
before  the  submission  of  the  cause  to  the  jury,  In  the  discretion 
of  the  court,  be  permitted  to  separate  or  be  kept  in  charge  of  a 
proper  officer.  The  officer  must  be  sworn  to  keep  the  jurors 
together  until  the  next  meeting  of  the  court,  to  suffer  no  person 
to  speak  to  them  or  communicate  with  them,  nor  to  do  so  him- 
self, on  any  subject  connected  with  the  trial,  and  to  return  them 
into  court  at  the  next  meeting  thereof.  [Amendment  approved 
April  9,  1880;  amendments  1880,  p.  23.  In  effect  April  9, 
1880.1 

U6   Cal.    297;    117   Cal.    657;    122   Cal.    139. 

Jury,  at  each  adjournment,  must  be  admonished,  etc. 

1122.  The  jury  must  also,  at  each  adjournment  of  the  court, 
whether  permitted  to  separate  or  kept  in  charge  of  officers,  be 
admonished  by  the  court  that  it  is  their  duty  not  to  converse 
among  themselves  or  with  any  one  else  on  any  subject  con- 
nected with^  the  trial,  or  to  form  or  express  any  opinion  thereon 
until  the  cause  is  finally  submitted  to  them. 

84    Cal.    606;    116    Cal.    297;    117    Cal.    657. 

Juror    unable    to    perform    his    duties,    proceedings. 

1123.  If,  before  the  conclusion  of  the  trial,  a  juror  becomes 
sick,  so  as  to  be  unable  to  perform  his  duty,  the  court  may  order 
him  to  be  discharged.  In  that  case  a  new  juror  may  be  sworn 
and  the  trial  begin  anew,  or  the  jury  may  be  discharged  and  a 
new  jury  then  or  afterwards  impaneled. 

64  Cal.   61;   72  Cal.   492;   96  Cal.   128;  119  Cal.  332. 

Court  to  decide  questions  of  law  arising  during  trial. 

1124.  The  court  must  decide  all  questions  of  law  which  arise 
in  the  course  of  a  trial. 

On   indictment  for   libel,  jury  to  determine   law  and  fact. 

1125.  On  a  trial  for  libel,  the  jury  has  the  right  to  determine 
the  law  and  the  fact.  [Amendment  approved  April  9,  1880; 
amendments  1880,  p.   23.     In  effect  April  9,   1880.] 

in  all  other  cases  court  to  decide  questions  of  law. 

1126.  On  a  trial  for  any  other  offense  than  libel,  questions  of 
law  are  to  be  decided  by  the  court,  questions  of  fact  by  the  jury; 
and,  although  the  jury  have  the  power  to  find  a  general  verdict, 
which  includes  questions  of  law  as  well  as  of  fact,  they  are 
bound,  nevertheless,  to  receive  as  law  what  is  laid  down  as  such 
by  the  court.  [Amendment  approved  April  9,  1880;  amendments 
1880,  p.  23.     In  effect  April  9,  1880.] 

U3    Cal.    572. 
Charging  the  jury. 

1127.  In  charging  the  jury  the  court  must  state  to  them  all 
matters  of  law  necessary  for  their  information.  All  instructions 
given  (except  such  as  might  incidentally  be  given  during  the 
admission  of  evidence)  shall  be  in  writing,  unless  both  parties 
request  the  giving  of  an  oral  instruction,  or  consent  thereto, 
and  when  so  given  orally,  all  instructions  must  be  taken  down 
by  the  phonographic  reporter.  Either  party  may  present  to  the 
court  any  written  charge,  and  request  that  it  be  given.  If  the 
court  thinks  it  correct  and  pertinent,  it  must  be  given;  if  not, 
it  must  be  refused.  Upon  each  charge  presented  and  given  or 
refused,  the  court  must  indorse  and  sign  its  decision.     If  part 


685  THE  TRIAL.  1128-1131 

be  given  and  part  refused,  the  court  must  distinguish,  showing 
by  the  indorsement  what  part  of  the  charge  was  given  and  what 
part  refused.  [Amendment  approved  March  27,  1897;  stats. 
1897,  p.  184.1 

eS  Cal.  252;  69  Cal.  237;  77  Cal.  181;  78  Cal.  2; 
93  Cal.  660;  105  Cal.  672;  114  Cal.  557;  123 
Cal.  489;  127  Cal.  547;  131  Cal.  653. 

Jury  may  decide  in  court,  or  retire  in  custody  of  officers. 

1128.  After  hearing  the  charge,  the  jury  may  either  decide  in 
court  or  may  retire  for  deliberation.  If  they  do  not  agree  with- 
out retiring,  an  officer  must  be  sworn  to  Iceep  them  together  in 
some  private  and  convenient  place,  and  not  to  permit  any  person 
to  speak  to  or  communicate  with  them,  nor  to  do  so  himself, 
unless  by  order  of  the  court,  or  to  ask  them  whether  they  have 
agreed  upon  a  verdict,  and  to  return  them  into  court  when  they 
have  so  agreed,  or  when  ordered  by  the  court. 

Ill   Cal.    85. 

Defendant   appearing   for  trial    may   be  committed. 

1129.  When  a  defendant  who  has  given  bail  appears  for 
trial,  the  court  may,  in  its  discretion,  at  any  time  after  his 
appearance  for  trial,  order  him  to  be  committed  to  the  custody 
of  the  proper  officer  of  the  county,  to  abide  the  judgment  or 
further  order  of  the  court,  and  he  must  be  committed  and  held 
in  custody  accordingly. 

59    Cal.    676;    102   Cal.    311. 

If  district  attorney  fails  to  attend,  court  may  appoint. 

1130.  If  the  district  attorney  fails  to  attend  at  the  trial,  the 
court  must  appoint  some  attorney  at  law  to  perform  the  duties 
of  the  district  attorney  on  such  trial. 

98    Cal.    142. 

Allegations  of  larceny  or  embezzlement,  when  sustained. 

1131.  Upon  a  trial  for  larceny  or  embezzlement  of  money, 
bank  notes,  certificates  of  stock,  or  valuable  securities,  the 
allegation  of  the  indictment  or  information,  co  far  as  regards  the 
description  of  the  property,  is  sustained,  if  the  offender  be  proved 
to  have  embezzled  or  stolen  any  money,  bank  notes,  certificates 
of  stock,  or  valuable  security,  although  the  particular  species 
of  coin  or  other  money,  or  the  number,  denomination,  or  kind 
of  bank  notes,  certificates  of  stock,  or  valuable  security,  be  not 
proved;  and  upon  a  trial  for  embezzlement,  if  the  offender  be 
proved  to  have  embezzled  any  piece  of  coin  or  other  money, 
any  bank  note,  certificate  of  stock,  or  valuable  security,  although 
such  piece  of  coin  or  other  money,  or  such  bank  note,  certificate 
of  stock,  or  valuable  security,  may  have  been  delivered  to  him  in 
order  that  some  part  of  the  value  thereof  should  be  returned  to 
the  party  delivering  the  same,  and  such  part  shall  have  been 
returned  accordingly.  [Amendment  approved  April  9,  1880; 
amendments  1880,  p.  24.    In  effect  April  9,  1880.] 

56    Cal.    80;    66    Cal.    277;    69    Cal.    237;    108   Cal.  541. 


1135-1139  PENAL  CODE.  686 

CHAPTER  III. 

CONDUCT  OP  THE  JURY  AFTER  THE  CAUSE  IS  SUBMITTED 

TO  THEM. 

Sec.    1135.  Room,    etc.,    tor    jury    after    retirement. 

1136.  Accommodations  for  jury  when  kept  together. 

1137.  What  papers  the  jury  may  take  with  them. 

1138.  After  retirement,   may  return  Into  court  for  information. 

1139.  If    juror,    after    retirement,    becomes    sick,    etc. 

1140.  Not  to  be  dischargeil  unless  there  Is  no  probability  that  they 

can  agree. 

1141.  When  discharged   without  verdict,   cause  to  be   again   tried. 

1142.  Court  may  adjourn   during  absence,  but  deemed  open. 

1143.  Jurors'    fees.      Payment   of   same. 

Room,    etc.,  for  jury   after   retirement. 

1135.  A  room  must  be  provided  by  the  supervisors  of  each 
county  for  the  use  of  the  jury,  upon  their  retirement  for  deliber- 
ation, with  suitable  furniture,  fuel,  lights,  ana  stationery.  If 
the  supervisors  neglect,  the  court  may  order  the  sheriff  to  do  so, 
and  the  expenses  incurred  by  him  in  carrying  the  order  into 
effect,  when  certified  by  the  court,  are  a  county  charge. 

Accommodations  for  jury   when    kept   together. 

1136.  While  the  jury  are  kept  together,  either  during  the 
progress  of  the  trial  or  after  their  retirement  for  deliberation, 
the  court  must  direct  the  sheriff  to  provide  the  jury  with  suit- 
able and  sufficient  food  and  lodging,  or  other  reasonable  necessi- 
ties. And  the  auditor,  upon  the  order  of  the  court,  shall  draw 
his  warrant  for  the  expenses  so  incurred,  and  the  same  shall  be 
paid  by  the  treasurer  of  the  county,  or  city  and  county,  out  of 
the  general  funi.  [In  effect  60  days  from  March  23,  1901.  Stats., 
p.  654.] 

61   Cal.   186;   V   Cal.   338;    111   Cal.    85. 

What  papers  the  jury  may  tal<e  with  them. 

1137.  Upon  retiring  for  deliberation,  the  jury  may  take  with 
them  all  papers  (except  depositions)  which  have  been  received 
as  evidence  in  the  cause,  or  copies  of  such  public  records  or 
private  documents  given  in  evidence  as  ought  not,  in  the 
opinion  of  the  court,  to  be  taken  from  the  person  having  them 
in  possession.  They  may  also  take  with  them  the  written 
instructions  given,  and  notes  of  the  testimony  or  other  proceed- 
ings on  the  trial,  taken  by  themselves  or  any  of  them,  but  none 
taken  by  any  other  person. 

61   Cal.    551;    74  Cal.    485;   120  Cal.    11. 

After  retirement,  may  return   into  court  for  information. 

1138.  After  the  jury  have  retired  for  deliberation,  if  there 
be  any  disagreement  between  them  as  to  the  testimony,  or  if 
they  desire  to  be  informed  on  any  point  of  law  arising  in  the 
cause,  they  must  require  the  officer  to  conduct  them  into  court. 
Upon  being  brought  into  court,  the  information  required  must 
be  given  in  the  presence  of,  or  after  notice  to,  the  district 
attorney,  and  the  defendant  or  his  counsel,  or  after  they  have 
been  called.  [Amendment  approved  March  30,  1874;  amend- 
ments 1873-4,  p.  445.     In  effect  July  1,  1874.] 

53   Cal.    575;    65  Cal.    5»;   111   Cal.   831 

If  juror,  after  retirement,  becomes  sick,  etc. 

1139.  If.  after  the  retirement  of  the  jury,  one  of  them  he 
taken  so  sick  as  to  prevent  the  continuance  of  his  duty,  or  any 


687  CONDUCT  OF  JURY.  1140-1143 

other  accident  or  cause  occur  to  prevent  their  being  kept  for 
deliberation,  the  jury  may  be  discharged. 

Not  to  be  discharged  unless  there  is  no  probability  that  they  can 
agree. 

1140.  Except  as  provided  in  the  last  section,  the  jury  cannot 
be  discharged  after  the  cause  is  submitted  to  them  until  they 
have  agreed  upon  their  verdict  and  rendered  it  in  open  court, 
unless  by  consent  of  both  parties,  entered  upon  the  minutes, 
or  unless,  at  the  expiration  of  such  time  as  the  court  may  deem 
proper,  it  satisfactorily  appears  that  there  is  no  reasonable 
probability  that  the  jury  can  agree. 

76    Cal.    59;    97    Cal.    401;    100    Cal.    142. 

When   discharged  without  verdict,  cause  to  be  again  tried. 

1141.  In  all  cases  where  a  jury  is  discharged  or  prevented 
from  giving  a  verdict  by  reason  of  an  accident  or  other  cause, 
except  where  the  defendant  is  discharged  during  the  progress 
of  the  trial,  or  after  the  cause  is  submitted  to  them,  the  cause 
may  be  again  tried.  [Amendment  approved  April  y,  1880; 
amendments  1880,  p.  24.     In  effect  April  9,  1880.] 

Court    may    adjourn    during    absence,   but   deemed   open. 

1142.  While  the  jury  are  absent,  the  court  may  adjourn  from 
time  to  time,  as  to  other  business,  but  it  must  nevertheless  be 
open  for  every  purpose  connected  with  the  cause  submitted  to 
the  jury   until  a  verdict  is  rendered  or  the  jury  discharged. 

65   Cal.    621. 

Jurors'  fees,  payment  of  same. 

1143.  The  fees  of  jurors  in  the  superior  courts  of  the  state, 
in  criminal  cases,  shall  be  two  dollars,  in  lawful  money  of  the 
United  States,  for  each  day's  attendance,  and  mileage,  to  be 
computed  at  the  rate  of  fifteen  cents  per  mile  for  each  mile 
necessarily  travelled  in  attending  court,  in  going  only.  Such 
fees  and  mileage  shall  be  paid  by  the  treasurer  of  the  county, 
or  city  and  county,  in  which  the  juror's  services  were  rendered, 
out  of  the  general  fund  of  said  county,  or  city  and  county,  upon 
warrants  drawn  by  the  county  auditor  upon  the  written  order 
of  the  judge  of  the  court  in  which  said  juror  was  in  attendance, 
and  the  treasurer  of  said  county,  or  city  and  county,  shall  pay 
said  warrants.  The  board  of  supervisors  of  each  county,  or  city 
and  county,  is  hereby  directed  to  make  suitable  appropriation 
for  the  payment  of  the  fees  herein  provided  for.  [In  effect  July 
1,  1901.     Stats.,  p.  290.] 


11471151  PENAL  CODE.  68 

CHAPTER  IV. 
THE  VERDICT. 

Sec.    1147.  Return  of  Jury. 

1148.  Appearance    of   defendant. 

1149.  Manner  of  taking  verdict. 

1150.  Verdict    may    be   generai    or   special. 

1151.  General   verdict. 

1152.  Special   verdict. 

1153.  Special  verdict,  how  rendered. 

1154.  Form  of  special  verdict. 

1155.  Judgment    on    special    verdict. 

1156.  When  special  verdict  defective,  new  trial  to  be  ordered. 

1157.  jTiry  to  find  degree  of  crime. 

1158.  Jury    may    find    upon    charge    of    previous    conviction. 

1159.  Jury    may    convict    of    lesser    offense,    or    of    attempt. 

1160.  Vei-dlct  as  to  .some  defendants,   new  trial  as  to  others. 

1161.  Court   may   direct   a   reconsideration   of  the  verdict. 

1162.  When    judgment    may    be   given    on    informal    verdict. 

1163.  Polling   the   jury. 

1164.  Recording  the   verdict. 

1165.  Defendant,    when    to    be    discharged. 

1166.  Proceedings   upon    conviction   or   special    verdict. 

1167.  Proceedings  on  acauittal  on  ground  of  insanity. 

Return  of  jury. 

1147.  When  the  jury  have  agreed  upon  their  verdict  they 
must  be  conducted  into  court  by  the  officer  having  them  in 
charge.  Their  names  must  then  be  called,  and  if  all  do  not 
appear,  the  rest  must  be  discharged  without  giving  a  verdict. 
In  that  case  the  action  may  be  again  tried  at  the  same,  or 
another  term. 

57    Cal.    100;    62    Cal.    619. 

Appearance  of  defendant. 

1148.  If  charged  with  a  felony,  the  defendant  must,  before 
the  verdict  is  received,  appear  in  person.  If  for  a  misdemeanor, 
the  verdict  may  be  rendered  in  his  absence.  [Amendment  ap- 
proved April  9,  1880;  amendments  1880,  p.  24.  In  effect  April 
9th,  1880.] 

49  Cal.   42;  57  Cal.   352;  59  Cal.   358;  70  Cal.   472; 
118    Cal.    449. 

Manner  of  taking  verdict. 

1149.  When  the  jury  appear,  they  must  be  asked  by  the 
court,  or  clerk,  whether  they  have  agreed  upon  their  verdict, 
and  if  the  foreman  answers  in  the  affirmative,  they  must,  on 
being  required,  declare  the  same. 

62   Cal.    519;    94   Cal.    119. 

Verdict  may  be  general  or  special. 

1150.  The  jury  may  render  a  general  verdict,  or,  when  they 
are  in  doubt  as  to  the  legal  effect  of  the  facts  proved,  they  may, 
except  upon  a  trial  for  libel,  find  a  special  verdict.  [Amend- 
ment approved  April  9,  1880;  amendments  1880,  24.  In  effect 
April  9th,  1880.] 

General  verdict. 

1151.  A  general  verdict  upon  a  plea  of  not  guilty  is  either 
"guilty"  or  "not  guilty,"  which  imports  a  conviction  or  acquittal 
of  the  offense  charged  in  the  indictment.  Upon  a  plea  of  a 
former  conviction  or  acquittal  of  the  same  offense,  it  is  either 
"for  the  people"  or  "for  the  defendant."  When  the  defendant 
is  acquitted  on  the  ground  that  he  was  insane  at  the  time  of  the 


689  THE  VERDICT.  1152-1158' 

commission  of  tlie  act  cliarged,  the  verdict  must  be  "not  guilty 
by  reason  of  insanity."  When  the  defendant  is  acquitted  on 
the  ground  of  variance  between  the  indictment  and  the  proof, 
the  verdict  must  be  "not  guilty  by  reason  of  variance  between 
indictment  and  proof."  [Amendment  approved  March  30th, 
1874;   amendments  1878-4,  446.     In  effect  July  1,  1874.] 

51  Cal.  279;  68  Cal.  181;  73  Cal.  346;  84  Cal.   473; 
87    Cal.    283. 

Special    verdict.  ^ 

1152.  A  special  verdict  is  that  by  which  the  jury  find  the 
facts  only,  leaving  the  judgment  to  the  court.  It  must  present 
the  conclusions  of  fact  as  established  by  the  evidence,  and  not 
the  evidence  to  prove  them,  and  these  conclusions  of  fact  must 
be  so  presented  as  that  nothing  remains  to  the  court  but  to 
draw  conclusions  of  law  upon  them. 

Special   verdict,  how  rendered. 

1153.  The  special  verdict  must  be  reduced  to  writing  by  the 
jury,  or  in  their  presence  entered  upon  the  minutes  of  the  court, 
read  to  the  jury  and  agreed  to  by  them,  before  they  are  dis- 
charged. 

Form   of  soeciai   verdict. 

1154.  The  special  verdict  need  not  be  in  any  particular  form, 
but  is  sufficient  if  it  present  intelligibly  the  facts  found  by  the 
jury. 

Judgment  on  special  verdict. 

1155.  The  court  must  give  judgment  upon  the  special  verdict 
as  follows: 

1.  If  the  plea  is  not  guilty,  and  the  facts  prove  the  defendant 
guilty  of  the  offense  charged  in  the  indictment,  or  of  any  other 
offense  of  which  he  could  be  convicted  under  that  indictment, 
judgment  must  be  given  accordingly.  But  if  otherwise, 
judgment  of  acquittal  must  be  given. 

2.  If  the  plea  is  a  former  conviction  or  acquittal  of  the  same 
offense,  the  court  must  give  judgment  of  acquittal  or  con- 
viction, as  the  facts  prove  or  fail  to  prove  the  former  conviction 
or  acquittal. 

93    Cal.    568. 

When  special  verdict  defective,  new  trial  to  be  ordered. 

1156.  If  the  jury  do  not,  in  a  special  verdict,  pronounce 
affirmatively  or  negatively  on  the  facts  necessary  to  enable  the 
court  to  give  judgment,  or  if  they  find  the  evidence  of  facts 
merely,  and  not  the  conclusions  of  fact,  from  the  evidence,  as 
established  to  their  satisfaction,  the  court  must  order  a  new 
trial. 

Jury  to  find  degree  of  crime. 

1157.  Whenever  a  crime  is  distinguished  into  degrees,  the 
jury,  if  they  convict  the  defendant,  must  find  the  degree  of  the 
crime  of  which  he  is  guilty. 

49  Cal.  179;  52  Cal.  454;  53  Cal.  G27;  59  Cal.  384; 
60  Cal.  110;  65  Cal.  538;  67  Cal.  351;  68  Cal.  180; 
7.1   Cal.    5S1;   81   Cal.    618;    94   Cal.    3S6. 

Jury  may  find   upon  charge  of  previous  conviction. 

1158.  Whenever  the  fact  of  a  previous  conviction  of  another 
offense  is  charged  in  an  indictment  or  information,  the  jury,  if 


CRIMES--44 


1169-1163  PENAL  CODE.  690 

they  find  a  verdict  of  guilty  of  the  offense  with  which  he  la 
charged,  must  also,  unless  the  answer  of  the  defendant  admits 
'Uhe  charge,  find  whether  or  not  he  has  suffered  such  previous 
conviction.  The  verdict  of  the  jury  upon  a  charge  of  pre- 
vious conviction  may  be:  "We  find  the  charge  of  previous  con- 
viction true,"  or,  "We  find  the  charge  of  previous  conviction  not 
true,"  as  they  find  that  the  defendant  has  or  has  not  suffered 
euch  conviction.  [Amendment  approved  April  9,  1880;  amend- 
iments  1880,  24.    In  effect  April  9,  1880.] 

49  Cal.  395;  57  Cal.  560;  57  Cal.  572;  64  Cal.  155; 
64  Cal.  340;  64  Cal.  403;  66  Cal.  297;  73  CaJ.  445; 
73  Cal.  549;  109  Cal.  297;  110  Cal.  42;  118  Cal. 

389, 

Jury   may  convict  of   lesser  offense,  or  of  attempt. 

1159.  The  jury  may  find  the  defendant  guilty  of  any  offense, 
the  commission  of  which  is  necessarily  included  in  that  with 
which  he  is  charged,  or  of  an  attempt  to  commit  the  offense. 
[Amendment  approved  April  9,  1880;  amendments  1880,  24.  In 
effect  April  9th,  1880.1 

63  Cal.  59;  56  Cal.  80;  59  Cal.  364;  65  Cal  475; 
76  Cal.  58:  91  Cal.  272;  93  Cal.  659;  99  Cal.  229; 
lOO  Cal.  153;  105  Cal.  672;  115  Cal.  305. 

Verdict  as  to  some  defendants,  new  trial  as  to  others. 

1160.  On  an  indictment  or  information  against  several.  If  the 
jury  cannot  agree  upon  a  verdict  as  to  all,  they  may  render  a 
verdict  as  to  those  in  regard  to  whom  they  do  agree,  on  which  a 
Judgment  must  be  entered  accordingly,  and  the  case  as  to  the 
others  may  be  tried  by  another  jury.  [Amendment  approved 
April  9,  1880;   amendments  1880,  25.     In  effect  April  9,  1880.] 

87    Cal.    413. 

Court  may  direct  a  reconsideration  of  th«  verdict. 

1161.  When  there  is  a  verdict  of  conviction,  in  which  it 
appears  to  the  court  that  the  jury  have  mistaken  the  law,  the 
court  may  explain  the  reason  for  that  opinion  and  direct  the 
Jury  to  reconsider  their  verdict,  and  if,  after  the  reconsideration, 
they  return  the  same  verdict,  it  must  be  entered;  but  when  there 
is  a  verdict  of  acquittal,  the  court  cannot  require  the  jury  to 
reconsider  it.  If  the  jury  render  a  verdict  which  is  neither 
general  nor  special,  the  court  may  direct  them  to  reconsider  it, 
and  it  cannot  be  recorded  until  it  is  rendered  in  some  form  from 
which  it  can  be  clearly  understood  that  the  intent  of  the  jury  Is 
either  to  render  a  general  verdict  or  to  find  the  facts  specially 
and  to  leave  the  judgment  to  the  court. 

48  Cal.   559;   68   Cal.    180;   118  Cal.   448. 

When  judgment  may  be  given  on   informal  verdict. 

1162.  If  the  jury  persist  in  finding  an  informal  verdict,  from 
which,  however,  it  can  be  clearly  understood  that  their  intention 
is  to  find  in  favor  of  the  defendant  upon  the  issue,  it  must  be 
entered  in  the  terms  in  which  it  is  found,  and  the  court  must 
give  judgment  of  acquittal.  But  no  judgment  of  conviction  can 
be  given  unless  the  jury  expressly  find  against  the  defendant 
upon  the  issue,  or  judgment  is  given  against  him  on  a  special 
verdict. 

68    Cal.     180. 

Polling  the  jury. 

1163.  When  a  verdict  is  rendered,  and  before  it  is  recorded, 
the  Jury  may  be  polled    at  the  request  of  either  party,  In  which 


691  THE  VERDICT.  1164-1167 

case  they  must  be  severally  asked  whether  it  is  their  verdict, 
and  i:  any  one  answer  in  the  negative,  the  jury  must  be  sent  out 
for  further  deliberation. 

57    Cal.     100;    62    Cal.    620. 

Recording  the  verdict. 

1164.  When  the  verdict  given  Is  such  as  the  court  may 
receive,  the  clerk  must  immediately  record  it  in  full  upon  the 
minutes,  read  it  to  the  jury,  and  inquire  of  them  whether  it  is 
their  verdict.  If  any  juror  disagree,  the  fact  must  be  entered 
upon  the  minutes  and  the  jury  again  sent  out;  but  if  no  dis- 
agreement is  expressed,  the  verdict  is  complete,  and  the  jury 
must  be  discharged  from  the  case. 

57    Cal.    ICK). 

Defendant,  when   to   be  discharged. 

1165.  If  judgment  of  acquittal  is  given  on  a  general  verdict, 
and  the  defendant  is  not  detained  for  any  other  legal  cause, 
he  must  be  discharged  as  soon  as  the  judgment  is  given,  except 
where  the  acquittal  is  because  of  a  variance  between  the  pleading 
and  proof,  which  may  be  obviated  by  a  new  indictment  or 
information,  the  court  may  order  his  detention,  to  the  end  that  a 
new  indictment  or  information  may  be  preferred,  in  the  same 
manner  and  with  like  effect  as  provided  in  section  one  thousand 
one  hundred  and  seventeen.  [Amendment  approved  April  9, 
1880;   amendments  1880,  p.   25.     In  effect  April  9,  1880.] 

61  Cal.   140;  64  Cal.   263;  70  Cal.   65;  79  Cal.   179; 
»1   Cal.    643;    118   Cal.    27. 

Proceedings   upon   conviction   or  special   verdict. 

1166.  If  a  general  verdict  is  rendered  against  the  defendant, 
or  a  special  verdict  is  given,  he  must  be  remanded,  if  in  custody, 
or  if.  on  bail  he  may  be  committed  to  the  proper  officer  of  the 
county  to  await  the  judgment  of  the  court  upon  the  verdict. 
When  committed  his  bail  is  exonerated,  or  if  money  is  deposited 
Instead  of  bail    it  must  be  refunded  to  the  defendant. 

68    Cal.    182. 

Proceedings  on   acquittal   on   ground  of  insanity. 

1167.  If  the  jury  render  a  verdict  of  acquittal  on  the  ground 
of  insanity,  the  court  may  order  a  jury  to  be  summoned  from 
the  jury  list  of  the  county,  to  inquire  whether  the  defendant 
continues  to  be  insane.  The  court  may  cause  the  same  wit- 
nesses to  be  summoned  who  testified  on  the  trial,  and  other  wit- 
nesses, and  direct  the  district  attorney  to  conduct  the  proceed- 
ings, and  counsel  may  appear  for  the  defendant.  The  court  may 
direct  the  sheriff  to  take  the  defendant  and  retain  him  In 
custody  until  the  question  of  continuing  insanity  is  determined. 
If  the  jury  find  the  defendant  insane,  he  shall  be  committed  by 
the  sheriff  to  the  state  insane  asylum.  If  the  jury  find  the 
defendant  sane,  he  shall  be  discharged.  [Amendment  approved 
March  30,  1874;  amendments  1873-4,  p.  446.  In  effect  July  1, 
1874.] 


1170-1172  PENAL  CODE.  692 

CHAPTER  V. 
BILLS   OF  EXCEPTION. 

Sec.    1170.  lu   what  cases. 

1171.  When    to    be    settled    nnd    .signed. 

1172.  Exceptions  to  deci.slon  of  court  by  either  party. 

1173.  Kxcoptlons  to  decision   of  the  court   by   the  defendant. 

1174.  Exceptions,    how    settled. 

1175.  What  bill  of  exceptions-  Is  to  contain. 

1176.  Written    charges   need    not   be   excepted   to. 

In  what  cases. 

1170.  On  the  trial  of  an  indictment  or  information,  exceptions 
may  be  taken  by  the  defendant  to  a  decision  of  the  court: 

1.  In  disallowing  a  challenge  to  the  panel  of  the  jury,  or  to 
an  individual  juror  for  implied  or  actual  bias; 

2.  In  admitting  or  rejecting  testimony  on  the  trial  of  a  chal- 
lenge to  a  juror  for  actual  bias; 

3.  In  admitting  or  rejecting  testimony,  or  in  deciding  any 
question  of  law  not  a  matter  of  discretion,  or  in  charging  or 
instructing  the  jury  upon  the  law  on  the  trial  of  the  issue.  [In 
effect  February  28,  1901;  stats,  p.  81.] 

51  Cal.  470;  51  Cal.  496;  53  Cal.  184;  53  Cal. 
603;  56  Cal.  535;  59  Cal.  Z55;  61  Cal.  549;  70 
Cal.  11;  83  Cal.  381;  87  Cal.  120;  96  Cal.  126; 
U5  Cal.  167;  123  Cal.  488;  124  Cal.  553;  132 
Cal.  142. 

When  to  be  settled  and  signed. 

1171.  When  a  party  desires  to  have  the  exceptions  taken 
at  the  trial  settled  In  a  bill  of  exceptions,  the  draft  of  a  bill 
must  be  prepared  by  him  and  presented,  upon  notice  of  at  least 
^.wo  days  to  the  district  attorney,  to  the  judge  for  settlement 
within  ten  days  after  judgment  has  been  rendered  against  him, 
unless  further  time  is  granted  by  the  judge,  or  by  a  justice  of 
the  Supreme  Court,  or  within  that  period  the  draft  must  be 
delivered  to  the  clerk  of  the  court  for  the  judge.  When  received 
by  the  clerk,  he  must  deliver  it  to  the  judge,  or  transmit  it  to 
him  at  the  earliest  period  practicable.  When  settled,  the  bill 
must  be  signed  by  the  judge  and  filed  with  the  clerk  of  the 
court.  [Amendment  approved  February  18,  1881;  stats.  1881, 
p.  6.1  . 

51  Cal.  470;  63  Cal.  184;  33  Cal.  423;  55  Cal.  73; 

76  Cal.  514;  77  Cal.  356;  78  Cal.  406;  86  Cal.  167; 

94  Cal.  506;  106  Cal.  645;  115  Cal.  167;  122  Cal. 
210. 

Exceptions  to  decision  of  court  by  either  party. 

1172.  Exceptions  may  be  taken  by  either  party  to  the  decision 
of  a  court  or  judge  upon  a  matter  of  law: 

1.  In  granting  or  refusing  a  motion  to  set  aside  an  indict- 
ment or  information; 

2.  In  allowing  or  disallowing  a  demurrer  to  an  indictment  or 
information; 

3.  In  granting  or  refusing  a  motion  in  arrest  of  judgment; 

4.  In  granting  or  refusing  a  motion  for  a  new  trial; 

5.  In  making,  or  refusing  to  make,  an  order  after  judgment 
affecting  any  substantial  right  of  the  parties.  [Amendment 
approved  March  10,  1885;  stats.  1885,  p.  58.1 

55  Cal.  74;  56  Cal.  535';  65  Cal.  175;  107  Cal. 
478;    115    Cal.    161;    121    Cal.    495;    132    Cal.    142. 


693  BILLS  OF  EXCEPTION.  1173-1176 

Exceptions  to  decision  of  the  court  by  tiie  defendant. 

1173.  Exceptions  may  be  taken  by  the  defenaant  to  a  decision 
of  the  court  upon  a  matter  of  law: 

1.  In  refusing  to  grant  a  motion  for  a  change  of  the  place 
of  trial; 

2.  In  refusing  to  postpone  the  trial  on  motion  of  the  defend- 
ant. 

53  Cal  74;  56  Cal.  535;  65  Cal.  175;  115  Cal. 
167;    132    Cal.    142. 

Exceptions,  how  settled. 

1174.  Where  a  party  desires  to  have  the  exceptions  mentioned 
in  the  last  two  sections  settled  in  a  bill  of  exceptions,  the  draft 
of  a  bill  must  be  prepared  by  him  and  presentea,  upon  notice  of 
at  least  two  days  to  the  adverse  party,  to  the  judge,  for  settle- 
ment, within  ten  days  after  the  order  or  ruling  complained  of  is 
made,  unless  further  time  is  granted  by  the  judge,  or  by  a 
justice  of  the  Supreme  Court,  or  within  that  period  the  draft 
must  be  delivered  to  the  clerk  of  the  court  for  the  judge.  When 
received  by  the  clerk,  he  must  deliver  it  to  the  judge,  or  transmit 
it  to  him  at  the  earliest  period  practicable.  When  settled,  the 
bill  must  be  signed  by  the  judge,  and  filed  with  the  clerk  of  the 
court.  If  the  judge  in  any  case  refuses  to  allow  an  exception  in 
accordance  with  the  facts,  the  party  desiring  the  bill  settled 
may  apply  by  petition  to  the  Supreme  Court  to  prove  the  same. 
The  application  may  be  made  in  the  mode  and  manner  and 
under  such  regulations  as  that  court  may  prescribe;  and  the  bill, 
when  proven,  must  be  certified  by  the  chief  justice  asi  correct, 
and  filed  with  the  clerk  of  the  court  in  which  the  action  was 
tried,  and  when  so  filed  it  has  the  same  force  and  effect  as  if 
settled  by  the  judge  who  tried  the  cause.  If  the  judge  who 
presided  at  the  trial  ceases  to  hold  office  before  me  bill  Is 
tendered  or  settled,  he  may,  nevertheless,  settle  such  bill,  or  the 
party  may,  as  provided  in  this  section,  apply  to  the  Supreme 
Court  to  prove  the  same.  [Amendment  approved  March  30, 
1874;  amendments  1873-4,  p.  448.     In  effect  July  1,  1874.] 

51  Cal.  321;  53  Cal.  184;  55  Cal.  74;  56  Cal. 
119;  73  Cal.  2;  74  Cal.  190;  76  Cal.  284;  77  Cal. 
356;  78  Cal.  346;  108  Cal.  32;  119  Cal.  57;  121  Cal. 
281;  121  Cal.  496. 

What  bill   of  exceptions   is  to  contain. 

1175.  A  bill  of  exceptions  must  contain  so  much  of  the 
evidence  only  as  is  necessary  to  present  the  questions  of  law 
upon  which  the  exceptions  were  taken;  and  the  judge  must,  upon 
the  settlement  of  the  bill,  whether  agreed  to  by  the  parties  or 
not,  strikie  out  all  other  matters  contained  therein. 

-31  Cal.  321;  52  Cal.   212;  76  Cal.   285;  76  Cal.  351 ; :ai:::  J! '^  -  T 
80    Cal.    157;    SO    Cal.    4S8;    121    Cal.    281. 

Written  charges  need  not  be  excepted  to. 

1176.  When  written  charges  have  been  presented,  given,  or 
refused,  or  when  the  charges  have  been  taken  down  by  the 
reporter,  the  questions  presented  in  such  charges  need  not  be 
excepted  to  or  embodied  in  a  bill  of  exceptions,  but  the  written 
charges  or  the  report,  with  the  indorsements  showing  the  action 
of  the  court,  form  part  of  the  record,  and  any  error  in  the 
<iecision  of  the  court  thereon  may  be  taken  advantage  of  on 
appeal,  in  like  manner  as  if  presented  in  a  bill  of  exceptions. 

77  Cal.  ISO;  84  Cal.  581;  106  Cal.  36;  111  Cal. 
259;  115  Cal.  161;  118  Cal.  329;  127  Cal.  347. 


1179-1182  PENAL  CODE.  694 

CHAPTER  VI. 
NEW  TRIALS. 

Sec.    1179.  New   trial   defined. 

1180.  Its   effect. 

1181.  In   what   cases  It   may   be   granted. 

1182.  Application    for,    when    made. 

New  trial  defined. 

1179.  A  new  trial  is  a  re-examination  of  the  issue  in  the 
same  court,  before  another  jury,  after  a  verdict  has  been  given. 

72    Cal.    15. 

Its  effect. 

1180.  The  granting  of  a  new  trial  places  the  parties  in  the 
same  position  as  if  no  trial  had  been  had.  All  the  testimony 
must  be  produced  anew,  and  the  former  verdict  cannot  be  used 
or  referred  to,  either  in  evidence  or  in  argument,  or  be  pleaded 
in  bar  of  any  conviction  which  might  have  been  had  under  the 
indictment.  [Amendment  approved  March  30,  1874;  amendments 
1873-4,  p.  449.    In  effect  July  1.  1874.] 

99    Cal.    232. 

In  what  cases  it  may  be  granted. 

1181.  "When  a  verdict  has  been  rendered  against  the  defend- 
ant, the  court  may,  upon  his  application,  grant  a  new  trial.  In 
the  following  cases  only: 

1.  When  the  trial  has  been  had  in  his  absence,  if  the  indict- 
ment is  for  a  felony; 

2.  When  the  Jury  has  received  any  evidence  out  of  court  other 
than  that  resulting  from  a  view  of  the  premises; 

3.  When  the  jury  has  separated  without  leave  of  the  court, 
after  retiring  to  deliberate  upon  their  verdict,  or  been  guilty  of 
any  misconduct  by  which  a  fair  and  due  consideration  of  the 
case  has  been  prevented; 

4.  When  the  verdict  has  been  decided  by  lot,  or  by  any 
means  other  than  a  fair  expression  of  opinion  on  the  part  of  alt 
the  jurors; 

5.  When  the  court  has  misdirected  the  jury  in  a  matter  of 
law,  or  has  erred  in  the  decision  of  any  question  of  law  arising 
during  the  course  of  the  trial; 

6.  When  the  verdict  is  contrary  to  law  or  evidence; 

7.  When  new  evidence  is  discovered  material  to  the  defend- 
ant, and  which  he  could  not,  with  reasonable  diligence,  have 
discovered  and  produced  at  the  trial.  When  a  motion  for  a  new 
trial  is  made  upon  the  ground  of  newly-discovered  evidence, 
the  defendant  must  produce  at  the  hearing,  in  support  thereof,  the 
affiavits  of  the  witnesses  by  whom  such  evidence  is  expected  to 
be  given,  and  if  time  is  required  by  the  defendant  to  procure 
such  affidavits,  the  court  may  postpone  the  hearing  of  the 
motion  for  such  length  of  time  as,  under  all  the  circumstances 
of  the  case,  may  seem  reasonable. 

53  Cal.  184:  &6  Cal.  118;  70  Cal.  472;  71  Cal. 
398;  74  Cal.  483;  76  Cal.  575;  78  Cal.  334;  88 
Cal.  490;  91  Cal.  199;  102  Cal.  332;  115  Cal.  304; 
U9  Cal.  2;  122  Cal.  183;  125  Cal.  507;  129  Cal. 
563. 

Application  for,  when   made. 

1182.  The  application  for  a  new  trial  must  be  made  before 
judgment. 

80   Cal.    488;    98   Cal.    365. 


695  ARREST  OF  JUDGMENT.  1185-1188 

CHAPTER  VII 
ARREST  OF  JUDGMENT. 

Sec.    1185.  Motion  in  arrest  of  judgment. 

1186.  Court    may    arrest    judgment    without    motion. 

1187.  Effect  of  arresting  judgment. 

1188.  Defendant,   when   to    be   held   or  discharged. 

Motion  in  arrest  of  judgment. 

1185.  A  motion  in  arrest  of  judgment  is  an  application  on  the 
part  of  the  defendant  that  no  judgment  be  rendered  on  a  plea 
or  verdict  of  guilty,  or  on  a  verdict  against  the  defendant,  on  a 
plea  of  a  former  conviction  or  acquittal.  It  may  be  founded  on 
any  of  the  defects  in  the  indictment  or  information  mentioned  In 
section  one  thousand  and  four,  unless  the  objection  has  been 
waived  by  a  failure  to  demur,  and  it  must  be  made  before  or 
at  the  time  the  defendant  is  called  for  judgment.  [Amendment 
approved  April  9,  1880;  amendments  1880,  p.  25.  In  effect  April 
9,  1880.] 

48  Cal.  252;  49  Cal.  390;  56  Cal.  635;  58  Cal.  225; 
71  Cal.  389;  77  Cal.  33;  82  Cal.  621;  91  Cal.  199; 
98  Cal.  128;  103  Cal.  428;  103  Cal.  677;  122  Cal. 
143;  127  Cal.  549;  131  Cal.  250. 

Court  may  arrest  judgment  without  motion. 

1186.  The  court  may  also,  on  its  own  view  of  any  of  these 
defects,  arrest  the  judgment  without  motion. 

132    Cal.    16. 

Effect  of  arresting  judgment. 

1187.  The  effect  of  allowing  a  motion  in  arrest  of  judgment  is 
to  place  the  defendant  in  the  same  situation  in  which  he  was 
before  the  indictment  was  found  or  information  filed.  [Amend- 
ment approved  April  9,  1880;  amendments  1880,  p.  25.  In 
effect  April  9,  1880.] 

73   Cal.    406;    74    Cal.    98. 

Defendant,  when  to  be  held  or  discharged. 

1188.  If,  from  the  evidence  on  the  trial,  there  is  reason  to 
believe  the  defendant  guilty,  and  a  new  indictment  or  information 
can  be  framed  upon  which  he  may  be  convicted,  the  court  may 
order  him  to  be  recommitted  to  the  officer  of  the  proper  county, 
or  admitted  to  bail,  anew,  to  answer  the  new  indictment  or 
information.  If  the  evidence  shows  him  guilty  of  another 
offense,  he  must  be  committed  or  held  thereon,  and  in  neither 
case  shall  the  verdict  be  a  bar  to  another  prosecution.  But  if 
no  evidence  appears  sufficient  to  charge  him  with  any  offense, 
he  must,  if  in  custody,  be  discharged;  or  if  admitted  to  bail,  his 
bail  is  exonerated;  or  if  money  has  been  deposited  instead  of 
bail,  it  must  be  refunded  to  the  defendant;  and  the  arrest  of 
judgment  shall  operate  as  an  acquittal  of  the  charge  upon  which 
the  indictment  or  information  was  founded.  [Amendment  ap- 
proved April  9,  1880;  amendments  1880,  p.  25.  In  ffect  April  9,. 
1880.] 

64   Cal.    263;   74   Cal.    98;   109  Cal.   296. 


1191-1195 


PENAL  CODE. 


696 


Chapter    I. 
II. 


TITLE  VIII. 
OF  JUDGMENT  AND  EXECUTION. 
The  judgment,  sections  1191-1207. 
The  execution,  sections  1213-1230. 


CHAPTER  I. 
THE  JUDGMENT. 

Sec.    1191.  Appointing  time  for  Judgment. 

1192.  Upon   plea  of  guilty,   court  must  determine  degree. 

1193.  Presence  of  defendant. 

1194.  Defendant  in   custody,   how   brought  for  Judgment. 
1193.  How  lirought  before  the  court  when  on  ball. 

1196.  Bench-warrant   to   Issue. 

1197.  Form   of   l)ench-warrant. 

1198.  "Warrant,    how    served. 

1199.  Arrest    of   defendant. 

1200.  Arraignment   of   defendant   for  Judgment. 

1201.  What  cause  may  be  shown  against  the  Judgment. 

1202.  If   no   cause    shown.   Judgment    to   be    pronounced. 

1203.  Circumstances  In  aggravation  or  mitigation  of  punishment. 

1204.  Proof   of   former   conviction,    etc..    In    mitigation,    how   made. 

1205.  Duration  of  imprisonment  on  Judgment  to  pay  a  fine. 

1206.  Judgment   to   pay   a   line  constitutes  a  lien. 

1207.  Entry   of  judgment   and  Judgment   roll. 

Appointing  time  for  judgment. 

1191.  After  a  plea  or  verdict  of  guilty,  or  after  a  verdict 
against  the  defendant  on  the  plea  of  a  former  conviction  or 
acquittal,  if  the  judgment  be  not  arrested  or  a  new  trial  granted, 
tne  court  must  appoint  a  time  for  pronouncing  judgment,  which, 
in  cases  of  felony,  must  be  at  least  two  days  after  the  verdict, 
if  the  court  intend  to  remain  in  session  so  long;  but  if  not, 
then  at  as  remote  a  time  as  can  reasonably  be  allowed. 
[Amendment  approved  March  30,  1874;  amendments  1873-4,  p. 
449.     In  effect  July  1,  1874.1 

46  Cal.   9fi;   6.5  Cal.   174;   79  Cal.   632;   88  Cal.   174; 
88    Cal.    177. 

Upon  plea  of  guilty,  court  must  determine  degree. 

1192.  Upon  a  plea  of  guilty  of  a  crime  distinguished  or 
divided  into  degrees,  the  court  must,  before  passing  sentence, 
determine  the  degree. 

49    Cal.    178;    i2   Cal.    453;    67    Cal.    114;    73    Cal. 
582. 

Presence  of  defendant. 

1193.  For  the  purpose  of  judgment,  if  the  conviction  is  for 
felony,  the  defendant  must  be  personally  present;  if  for  a  mis- 
demeanor, judgment  may  be  pronounced  in  his  absence. 

68   Cal.    ISO;    79  Cal.   632. 

Defendant  in  custody,  how  brought  for  judgment. 

1194.  When  the  defendant  is  in  custody,  the  court  may  direct 
the  officer  in  whose  custody  he  is  to  bring  him  before  it  for 
judgment,  and  the  officer  must  do  so. 

How  brought  before  the  court  when  on  bail. 

1195.  If  the  defendant  has  been  discharged  on  bail,  or  has 
deposited  money  instead  thereof,  and  docs  not  appear  for  judg- 
ment wi^en  his  personal  appearance  is  necessary,  the  court,  in 


€97  THE  JUDGMENT.  1196-1201 

addition  to  the  forfeiture  of  the  undertaking  of  bail,  or  of  the 
money  deposited,  may  direct  the  clerk  to  issue  a  bench  warrant 
for  his  arrest. 

68     Cal.     180. 

Bench  warrant  to   issue. 

1196.  The  clerk,  on  the  application  of  the  district  attorney, 
may,  at  any  time  after  the  order,  whether  the  court  be  sitting 
or  not,  issue  a  bench  warrant  into  one  or  more  counties. 

Form  of  bench  warrant. 

1197.  The  bench  warrant  must  be  substantially  in  the  fol- 
lowing  form:     County   of  .     The  people   of   the   state   of 

California,  to  any  sheriff,  constable,  marshal,  or  policeman  In 
this   state:     A   B,   having   been   on   the  —  day   of  ,   A.   D. 

■eighteen    hundred    and   .    duly   convicted    in   the    Superior 

Coyrt  of  the  county  of .  of  the  crime  of [designating 

it  generally],  you  are  therefore  commanded  forthwith  to  arrest 
the  above  named  A  B,  and  bring  him  before^  that  court  for 
judgment.     Given  under  my  hand,   with  the  seal  of  said  court 

affixed,  this  —  day  of  ,  A.  D.  eighteen  hundred  and  . 

By  order  of  the  court.  [Seal.]  E  F,  clerk.  [Amendment 
approved  April  12,  1880;  stats.  1880,  p.  34.  In  effect  April  12, 
1880.1 

68     Cal.     180. 

Warrant,   how   served. 

1198.  The  bench  warrant  may  be  served  in  any  county  in 
the  same  manner  as  a  warrant  of  arrest,  except  that  when  served 
in  another  county  it  need  not  be  indorsed  by  a  magistrate  of 
that  county. 

Arrest  of  defendant. 

1199.  Whether  the  bench  warrant  is  served  in  the  county  in 
which  it  was  issued  or  in  another  county,  the  ofiicer  must  arrest 
the  defendant  and  bring  him  before  the  court  or  commit  him 
to  the  officer  mentioned  in  t^e  warrant,  according  to  the  com- 
mand thereof. 

Arraignment  of  defendant  for  judgment. 

1200.  When  the  defendant  appears  for  judgment  he  must  be 
informed  by  the  court,  or  by  the  clerk,  under  its  direction,  of 
the  nature  of  the  charge  against  him  and  of  his  plea,  and  the 
verdict,  if  any  thereon,  and  must  be  asked  whether  he  has  any 
legal  cause  to  show  why  judgment  should  not  be  pronounced 
against  him.  [Amendment  approved  April  9,  1880;  amendments 
18S0,   p.   26.     In   effect  April  9,   1880.] 

64  Cal.  372;  70  Cal.  471;  87  Cal.  123:  88  Cal.  120; 
S8  Cal.  142;  88  Cal.  175;  88  Cal.  178;  102  Cal. 
231;  114  Cal  355;  118  Cal.  390;  132  Cal.  140. 

What  cause   may   be   shown   against  the  judgment. 

1201.  He  may  show,  for  cause  against  the  judgment: 

1.  That  he  is  insane;  and  if,  in  the  opinion  or  the  court,  there 
is  reasonable  ground  for  believing  him  to  be  insane,  the  question 
of  insanity  must  be  tried  as  provided  in  chapter  VI,  title  X, 
part  II  of  this  code.  If,  upon  the  trial  of  that  question,  the 
jury  find  that  he  is  sane,  judgment  must  be  pronounced,  but  if 
thev  find  him  insane,  he  must  be  committed  to  the  state  lunatic 
asylum  until  he,  becomes  sane;  and  when  notice  is  given  of  that 
fact,  a'j  provided  in  section  1372,  he  must  be  brought  before 
the  court  for  judgment; 


1202-1207  PENAL  CODE.  698 

2.  That  he  has  good  cause  to  offer,  either  in  arrest  of  judg- 
ment or  for  a  new  trial;  in  which  case  the  court  may,  in  its 
discretion,  order  the  judgment  to  be  deferred,  and  proceed  to 
decide  upon  a  motion  in  arrest  of  judgment  or  for  a  new  trial. 

62  Cal.  55;  68  Cal.  180;  70  Cal.   471;  114  Cal.  355; 
122    Cal.     411. 

If  no  cause  shown,  judgment  to  be  pronounced. 

1202.  If  no  sufficient  cause  is  alleged  or  appears  to  the  court 
why  judgment  should  not  oe  pronounced,  it  must  thereupon  be 
rendered. 

70    Cal.    471;    133    Cal.    123. 

Circumstances   in   aggravation   or   mitigation   of  punishment. 

1203.  After  a  plea  or  verdict  of  guilty,  where  a  discretion  is 
conferred  upon  the  court  as  to  the  extent  of  the  punishment,  the 
court,  upon  the  oral  suggestion  of  either  party  thai  there  are 
circumstances  which  may  be  properly  taken  into  view  either  in 
aggravation  or  mitigation  of  the  punishment,  may,  in  its  dis- 
cretion, hear  the  same  summarily,  at  a  specified  time,  and  upon 
such   notice  to  the  adverse  party  as  it  may  direct. 

122    Cal.     631. 

Proof  of  former  conviction,  etc.,  in  mitigation,  how  made. 

1204.  The  circumstances  must  be  presented  by  the  testimony 
of  witnesses  examined  in  open  court,  except  that  when  a  wit- 
ness is  so  sick  or  infirm  as  to  be  unable  to  attend,  his  deposition 
may  be  taken  by  a  magistrate  of  the  county,  out  of  court,  upon 
such  notice  to  the  adverse  party  as  the  court  may  direct.  No 
affidavit  or  testimony,  or  representation  tof  any  kind,  verbal  or 
written,  can  be  offered  to  or  received  by  the  court,  or>  a  judge 
thereof,  in  aggravation  or  mitigation  of  the  punishment,  except 
as  provided  in  this  and  the  preceding  section. 

Duration  of  imprisonment  on  judgment  to  pay  a  fine. 

1205.  A  judgment  that  the  defendant  pay  a  fine  may  also 
direct  that  he  be  imprisoned  until  the  fine  be  satisfied.  But  the 
judgment  must  specify  the  extent  of  the  imprisonment,  which 
must  not  exceed  one  day  for  every  two  dollars  of  the  fine,  nor 
extend  in  any  case  beyond  the  term  for  which  the  defendant 
might  be  sentenced  to  imprisonment  for  the  offense  of  which 
he  has  been  convicted.  [Amendment  approved  March  10,  1891. 
stats.  1891,  p.  52.] 

64  Cal  205;  60  Cal  435;  63  Cal.  300;  64  Cal.  438; 

66  Cal.  186;  73  Cal.  495;  82  Cal.  274;  82  Cal.  522; 

83  Cal.  389;  84  Cal.  166;  $5  Cal.  38;  88  Cal.  680; 

94  Cal.  333;  97  Cal.  528;  113  Cal.  37. 

Judgment  to  pay  a  fine  constitutes  a  lien. 

1206.  A  judgment  that  the  defendant  pay  a  fine  constitutes 
a  lien,  in  like  manner  as  a  judgment  for  money  rendered  in  a 
civil   action. 

113    Cal.    37;    129    Cal.    548. 

Entry  of  judgment  and  judgment  roll. 

1207.  When  judgment  '  upon  a  conviction  is  rendered,  the 
clerk  must  enter  the  same  in  the  minutes,  stating  briefly  the 
offense  for  which  the  conviction  was  had,  and  the  fact  of  a  prior 
conviction  (it  one),  and  must,  within  five  days,  annex  together 
and  file  the  following  papers,  which  will  constitute  a  record  of 
the  action: 


699  THE  JUDGMENT — EXECUTION.  1213-1216 

1.  The  indictment  or  information,  and  a  copy  of  the  minutes 
of  the  plea  or  demurrer. 

2.  A  copy  of  the   minutes  of  the  trial. 

3.  The    charges    given    or    refused,     and     the    indorsements 
thereon.    And, 

4.  A  copy  of  the  judgment.     [Amendment  approved  April  9, 
1880;   amendments  1880,  p.  26.    In  effect  April  9,  1880.] 

52  Cal.  480;  &Y  Cal.  565;  58  Cal.  252;  59  Cal.  651; 
65  Cal.  234;  65  Cal.  298;  71  Cal.  387;  73  Cal.  442; 
77  Cal.  180;  78  Cal.  2;  88  Cal.  120;  88  Cal.  140; 
88  Cal.  175;  88  Cal.  487:  103  Cal.  510;  114  Cal. 
854;  118  Cal.  329;  120  Cal.  273;  121  Cal.  494; 
127  Cal.  547;  1R3  Cal.  123. 


CHAPTER  II. 
THE   EXECUTION. 

Sec.    1213.  Execution  of  a  judgment  other  than  of  death. 

1214.  If  for  fine  aloue,   execution   to  issue  as   in   civil  cases. 

1215.  Judgment   of    fine   and    imprisonment,   how  executed. 

1216.  Judgnifut   of   imprisonment.    Duty   of   sheriff. 

1217.  Execution    upon    judgment   of   death. 

1218.  Transmission    of   conviction    and    testimony   to   governor. 

1219.  Governor  may   require  opinion   of  supreme   court,  thereon. 

1220.  Judgment  of  death,  when  sus^ended. 

1221.  Insanity    of   defendant,    how    determined. 

1222.  Duty   of  district    attorne.v   upon    inquisition. 

1223.  Inquisition,    how   certified  and   tiled. 

1224.  Proceedings  upon   finding  of  jur.v. 

122.5.  Proceedings   when   female   is  supposed   to  be   pregnant. 

1226.  Proceedings   upon   the   finding   of   the   jury. 

1227.  Judgment   of  death   remaining  in   force,   not  executed. 

1228.  Punishment  of  death,   how   inflicted. 

1229.  Execution,  where  to  take  place  and  who  to  be  present. 

1230.  Return  upon  death-warrant. 

Execution  of  a  judgment  other  than  of  death. 

1213.  When  a  judgment,  other  than  of  death,  has  heen  pro- 
nounced, a  certified  copy  of  the  entry  thereof  upon  the  minutes 
must  be  forthwith  furnished  to  the  officer  whose  duty  it  is  to 
execute  the  judgment,  and  no  other  warrant  or  authority  Is 
necessary  to  justify   or  require   its   execution. 

103    Cal.    413. 

If  for  fine  alone,  execution  to  issue  as  in  civil  cases. 

1214.  If  the  judgment  is  for  a  fine  alone,  execution  may  be 
issued  thereon  as  on  a  judgment  in  a  civil  action. 

64  Cal.   156;  64  Cal.   43S;  S3  Cal.   390;  113  Cal.   37. 
129   Cal.    548. 

Judgment  of  fine  and   imprisonment,  how  executed. 

1215.  If  the  judgment  is  for  imprisonment,  or  a  fine,  and 
imprisonment  until  it  be  paid,  the  defendant  must  forthwith 
be  committed  to  the  custody  of  the  proper  officer,  and  by  him 
detained  until  the  judgment  is  complied  with. 

63    Cal.    300;    64    Cal.    438;    S3   Cal.    390;    W    Cal. 
390. 

Judgment  of  imprisonment.     Duty  of  sheriff. 

1216.  If  the  judgment  is  for  imprisonment  in  the  state  prison, 
the  sheriff  of  the  county  must,  upon  receipt  of  a  certified  copy 
thereof,  take  and  deliver  the  defendant  to  the  warden  of  the 
state  prison.  He  must  also  deliver  to  the  warden  the  certified 
copy  of  the  judgment,  and  take  from  the  warden  a  receipt  for 
the  defendant. 


1217-1223  PENAL  CODE.  700 

Execution   upon  judgment  of  death. 

1217.  When  judgment  of  death  is  rendered,  a  warrant,  signed 
by  the  judge,  and  attested  by  the  clerk,  under  the  seal  of  the 
court,  must  be  drawn  and  delivered  to  the  sheriff.  It  must 
state  the  conviction  and  judgment,  and  appoint  a  day  on  which 
the  judgment  is  to  be  executed,  which  must  not  be  less  than 
sixty  nor  more  than  ninety  days  from  the  time  of  judgment,  and 
must  direct  the  sheriff  to  deliver  the  defendant,  within  ten  days 
from  the  time  of  judgment,  to  the  warden  of  one  of  the  state 
prisons  of  this  state,  for  execution,  such  prison  to  be  designated 
in  the  warrant.  [Amendment  approved  March  31,  1891;  stats. 
1891,  p.  272.] 

54  Cal.  92;  68  Cal.  180;  93  Cal.   439;  95  Cal.   429; 
119    Cal.    207. 

Transmission  of  conviction  and  testimony  to  governor. 

1218.  The  judge  of  the  court  of  which  a  conviction  requiring 
judgment  of  death  is  had,  must,  immediately  after  the  con- 
viction, transmit  to  the  governor,  by  mail  or  otherwise,  a  state- 
ment of  the  conviction  and  judgment,  and  of  the  testimony 
given   at  the   trial. 

68     Cal.      180. 

Governor  may  require  opinion  of  Supreme  Court  tliereon. 

1219.  The  governor  may  thereupon  require  the  opinion  of 
the  justices  of  the  Supreme  Court  and  of  the  attorney  general, 
or  any  of  them,  upon  the  statement  so  furnished. 

Judgment   of   death,   when    suspended. 

1220.  No  judge,  court,  or  officer,  other  than  the  governor, 
can  suspend  the  execution  of  a  judgment  of  death,  except  the 
warden  of  the  state  prison  to  whom  he  is  delivered  for  execution, 
as  provided  in  the  six  succeeding  sections,  unless  an  appeal  is 
taken.  [Amendment  approved  March  31,  1891;  stats.  1891,  p. 
273.] 

Insanity  of  defendant,  how  determined. 

i221.  If,  after  judgment  of  death,  there  is  good  reason 
to  suppose  that  the  defendant  has  become  insane,  the  warden 
of  the  state  prison  to  whom  he  is  delivered  for  execution,  with 
the  concurrence  of  the  judge  of  the  Superior  Court  of  the  county 
in  which  such  prison  is  situated,  may  summon  from  the  list  of 
jurors  selected  by  the  supervisors  for  the  year,  a  jury  of  twelve 
persons,  to  inquire  into  the  suppcsed  insanity,  and  must  give 
immediate  notice  thereof  to  the  district  attorney  of  'such 
county.  [Amendment  approved  March  31,  1891;  stats.  1891.  p. 
273.1 

Duty  of  district  attorney  upon   inquisition. 

1222.  The  district  attorney  must  attend  the  inquisition,  and 
may  produce  witnesses  before  the  jury,  for  which  purpose  he 
may  issue  process  in  the  same  manner  as  for  witnesses  to  attend 
before  the  grand  jury,  and  disobedience  thereto  may  be  punished 
in  like  manner  as  disobedience  to  process  issued  by  the  court. 

Inquisition,   how  certified   and  filed. 

1223.  A  certificate  of  the  inquisition  must  he  signed  by  the 
jurors  and  the  warden,  and  filed  with  the  clerk  of  the  Superior 
Court  of  the  county  in  which  such  state  prison  is  situated. 
[Amendment  approved  March  31,  1891;   Stats.  1891,  p.  273.] 


i 


701  rnE  KXEcuTiON.  1224- 122S 

Proceedings  upon  finding  of  Jury. 

1224.  If  it  is  found  by  the  inquisition  that  the  defendant 
is  sane,  the  warden  must  execute  the  judgment;  but  if  it  is 
found  that  he  is  insane,  the  warden  must  suspend  the  execution 
of  the  judgment  until  he  receives  a  warrant  from  the  govenor, 
or  from  the  judge  of  tjie  Superior  Court  of  the  county  in  which 
such  state  prison  is  situated,  directing  the  execution  of  the 
judgment.  If  the  inquisition  finds  that  the  defendant  is  insane, 
the  warden  must  ijnmediately  transmit  it  to  the  governor,  who 
may,  when  the  defendant  becomes  sane,  issue  a  warrant  ap- 
pointing a  day  for  the  execution  of  the  judgment.  [Amend- 
ment approved  March  31,  1891;   Stats.  1891,  p.  273.] 

Proceedings  when  female  is  supposed  to  be  pregnant. 

1225.  If  there  is  good  reason  to  suppose  that  a  female  against 
whom  a  judgment  of  death  is  rendered  is  pregnant,  the  warden 
of  the  state  prison  to  whom  she  is  delivered  for  execution,  with 
the  concurrence  of  the  Superior  Court  of  the  county  in  which 
such  state  prison  is  situated,  may  summon  a  jury  of  three 
physicians  to  inquire  into  the  supposed  pregnancy.  Immediate 
notice  thereof  must  be  given  to  the  district  attorney  of  such 
county,  and  the  provisions  of  sections  twelve  hundred  and 
twenty-two  and  twelve  hundred  and  twenty-three  apply  to  the 
proceedings  upon  the  inquisition.  [Amendment  approved  March 
31,  1891;    Stats.  1891,   p.  273.1 

Proceedings  upon  tine  finding  of  the  jury. 

1226.  If  it  is  found  by  the  inquisition  that  the  female  is  not 
pregnant,  the  warden  must  execute  the  judgment;  if  it  is  found 
that  she  is  pregnant,  the  warden  must  suspend  the  execution 
of  the  judgment,  and  transmit  the  inquisition  to  the  governor. 
When  the  governor  is  satisfied  that  the  female  is  no  longer  preg- 
nant, he  may  issue  his  warrant  appointing  a  day  for  the  execu- 
tion of  the  judgment.  [Amendment  approved  March  31,  1891; 
Stats.  1891,  p.  274.] 

Judgment   of   death    remaining    in    force,   not   executed. 

1227.  If  for  any  reason  a  judgment  of  death  has  not  been 
executed,  and  it  remains  in  force,  the  court  in  which  the  con- 
viction is  had,  on  the  application  of  the  district  attorney  of  the 
county  in  which  the  conviction  is  had,  must  order  the  defend- 
ant to  be  brought  before  it,  or  if  he  is  at  large,  a  warrant  for 
apprehension  may  be  issued.  Upon  the  defendant  being  brought 
before  the  court,  it  must  inquire  into  the  facts,  and  if  no  legal 
reasons  exist  against  the  execution  of  the  judgment,  must 
make  an  order  that  the  warden  of  the  state  prison  to  whom 
the  sheriff  is  directed  to  deliver  the  defendant,  shall  execute 
the  judgment  at  a  specified  time.  The  warden  must  execute 
the  judgment  accordingly.  [Amendment  approved  March  31, 
1891;   Stats.  1891,  p.  274.] 

54  Cal.    92;   61  Cal.   539;    68  Cal.   180;   93  Cal.   439; 
119  Cal.   207;   120  Cal.   6ZI. 

Punishment  of  death,  how  inflicted. 

1228.  The  punishment  of  death  must  be  inflicted  by  hanglnc 
the  defendant  by  the  neck  until  he  is  dead. 

59   Cal.    357. 


1229-1235  PENAL  CODE.  702 

Execution,  where  to  take  place  and  who  to  be  present. 

1229.  A  judgment  of  death  must  be  executed  within  the  walls 
of  one  of  the  state  prisons  designated  by  the  court  by  which 
judgment  is  rendered.    The  warden  of  the  state  prison  where  the 

execution  is  to  take  place  must  be  present  at  the  execution 
and  must  invite  the  presence  of  a  physician,  the  attorney  general 
of  the  state,  and  at  least  twelve  reputable  citizens,  to  be  selected 
by  him;  and  he  shall,  at  the  request  of  the  defendant,  permit 
such  ministers  of  the  gospel,  not  exceeding  two,  as  the  defend- 
ant may  name,  and  any  persons,  relatives  or  friends,  not  to  ex- 
ceed five,  to  be  present  at  the  execution,  together  with  such 
peace  officers  as  he  may  think  expedient,  to  witness  the  execu- 
tion. But  no  other  persons  than  those  mentioned  in  this  section 
can  be  present  at  the  execution,  nor  can  any  person  under  age 
be  allowed  to  witness  the  same.  [Amendment  approved  March 
31,  1891;  Stats.  1891.  p.  274.] 

69   Cal.   355;   93  Cal.    439;    961  Cal.    429. 

Return   upon   death-warrant. 

1230.  After  the  execution,  the  warden  must  make  a  return 
upon  the  death  warrant  to  the  court  by  which  the  judgment 
was  rendered,  showing  the  time,  mode,  and  manner  in  which  it 
was  executed.  [Amendment  approved  March  31,  1891;  Stats. 
1891.  p.  274.] 

TITLE  IX. 
OF  APPEALS  TO  THE  SUPREME  COURT. 

Chap.  I.    Appeals,  when  allowed  and  how  taken,  and  the  Effect 
thereof,   1235-46. 
II.     Dismissing  an   Appeal   for   Irregularity,   1248-9. 

III.  Argument  of  the  Appeal,      1252-5. 

IV.  Judgment  upon  Appeal,  1258-65. 


CHAPTER  L 

APPEALS,  WHEN  ALLOWED  AND  HOW  TAKEN,  AND  THE 

EFFECT  THEREOF. 

Sec.    1235.  Appeal,   by   -whom  taken,   on   questions   of  law   alone. 

1236.  Parties,   how  designated  on   appeal. 

1237.  Appeal,    when   may   be  taken   by   the  defendant. 

1238.  In   what  cases  by  the  people. 

1230.  Appeals,  within  what  time  to  be  taken. 

1240.  Appeal,    how    taken. 

1241.  When    notice   may   be   served   by   publication. 

1242.  Effect  of  an  appeal  by  the  people. 
124.S.  Effect  of  an  appeal  by  the  defendant. 
1244.  Same. 

1245     Same. 

1246.    Duty  of  clerks  upon  appeal. 

Appeal,  by  whom  taken,  on  questions  of  law  alone. 

1235.  Either  party  in  a  criminal  action  amounting  to  a 
felony  may  appeal  to  the  Supreme  Court,  on  questions  of  law 
alone,  as  prescribed  in  this  chapter. 

65   Cal.    645;   108   Cal.   663;    109   Cal.    279. 


703  APPEALS  TO  SUPREME  COURT.  1236-1243 

Parties,  how  designated  on  appeal. 

1236.  The  party  appealing  is  known  as  the  appellant,  and 
the  adverse  party  as  the  respondent,  but  the  title  of  the  action 
is  not  changed  in  consequence  of  the  appeal. 

Appeal,   when    may   be   taken    by  the   defendant. 

1237.  An  appeal  may  be  taken  by  the  defendant: 

1.  From  a  final  judgment  of  conviction; 

2.  From  an  order  denying  a  motion  for  a  new  trial; 

3.  From  any  order  made  after  judgment,  affecting  the  sub- 
stantial rights  of  the  party. 

54  Cal.  92:  65  Cal.  100;  77  Cal.  309;  82  Cal.  616; 
95  Cal.  595;  115  Cal.  161;  117  Cal.  666;  119  Cal.  1; 
119  Cal.  57;  119  Cal.  209;  132  Cal.  15. 

In  what  cases  by  the  people. 

1238.  An  appeal  may  be  taken  by  the  people: 

1.  From  an  order  setting  aside  the  indictment  or  iniormation; 

2.  From  a  judgment  for  the  defendant  on  a  demurrer  to  the 
indictment  or  information; 

3.  From  an  order  granting  a  new  trial; 

4.  From  an  order  arresting  judgment; 

5.  From  an  order  made  after  judgment,  affecting  the  sub- 
stantial rights  of  the  people; 

6.  From  an  order  of  the  court  directing  the  jury  to  find  for 
the  defendant.  [Amendment  approved  March  27,  1897;.  Stats. 
1897,  p.  195.     In  effect  immediately.] 

65  Cal.  79;  65  Cal.  644;  70  Cal.  18;  71  Cal.  546; 
107   Cal.   478;    113   Cal.    474;   114   Cal.   64. 

Appeals,  within  what  time  to  be  taken. 

1239.  An  appeal  from  a  judgment  must  be  taken  within  one 
years  after  its  rendition,  and  from  an  order,  within  sixty  days 
after  it  is  made. 

53  Cal.  630;  95  Cal.  595;  105  Cal.  263;  132  Cal. 
139. 

Appeal,  how  taken. 

1240.  An  appeal  is  taken  by  filing  with  the  clerk  of  the  court 
in  which  the  judgment  or  order  appealed  from  is  entered  or  filed, 
a  notice  stating  the  appeal  from  the  same,  and  serving  a  copy 
thereof  upon  the  attorney  of  the  adverse  party. 

49  Cal.  455;  56  Cal.  120;  62  Cal.  482;  66  Cal. 
11;  70   Cal.    34;    77   Cal.    309;    119   Cal.    669. 

When   notice  may  be  served   by  publication. 

1241.  If  personal  service  of  the  notice  cannot  be  made,  the 
judge  of  the  court  in  which  the  action  was  tried,  upon  proof 
thereof,  may  make  an  order  for  the  publication  of  the  notice  in 
some  newspaper  for  a  period  not  exceeding  thirty  days;  such 
publication  is  equivalent  to  personal  service. 

49   Cal.    455. 

Effect  of  an  appeal  by  the  people. 

1242.  An  appeal  taken  by  the  people  in  no  case  stays  or 
affects  the  operation  of  a  judgment  in  favor  of  the  defendant, 
until  judgment  is  reversed. 

Effect  of  an  appeal  by  the  defendant. 

1243.  An  appeal  to  the  Supreme  Court  from  a  judgment  of 
conviction  stays  the  execution  of  the  judgment  in  all  capital 
cases,  and  in  all  other  cases,  upon  filing  with  the  clerk  of  the 
court   in   which   the    conviction    was   had,   a    certificate    of   the 


1244-1249  PENAL  CODE.  704 

judge  of  such  court,  or  of  a  justice  of  the  Supreme  Court,  that^ 
in  his  opinion,  there  is  probable  cause  for  the  appeal,  but  not 
otherwise.  [Amendment  approved  March  30,  187*1;  Amend- 
ments 1873-4,  p.  450.     In  effect  July  1,  1874.] 

49  Cal.  682;  68  Cal.  ISO:  SI  Cal.  164:  95  Cal.  .596; 
96  Cal.  596:  104  Cal.  401;  119  Cal  129;  119  Cal. 
210:  125  Cal.  252. 

Same. 

1244.  If  the  certificate  provided  for  in  the  preceding  section 
is  filed,  the  sheriff  must,  if  the  defendant  be  in  his  custody,  upon 
being  served  with  a  copy  thereof,  keep  the  defendant  in  his 
custody  without  executing  the  judgment,  and  detain  him  to 
abide  the  judgment  on  appeal. 

Same. 

1245.  If,  before  the  granting  of  the  certificate,  the  judgment 
has  commenced,  the  further  execution  thereof  is  suspended,  and 
upon  service  of  a  copy  of  such  certificate  the  defenfinnt  must  be 
restored,  by  the  officer  in  whose  custody  he  is,  to  his  original 
custody. 

Duty  of  clerks   upon   appeal. 

1246.  Upon  the  appeal  being  taken  the  clerk  of  the  court 
with  whom  the  notice  of  appeal  is  filed  must,  within  twenty 
days  thereafter,  in  case  the  bill  of  exceptions  has  been  settled 
by  the  judge  before  the  giving  of  said  notice,  but  if  not,  then, 
within  twenty  days  from  the  settlement  of  the  bill  of  exceptions, 

without  charge,  transmit  to  the  clerk  of  the  appellate  court, 
fifteen  printed  copies  (one  of  which  shall  be  certified  to  and  be 
the  original )  of  the  notice  of  appeal,  the  record,  and  of  all 
bills  of  exception;  and  upon  receipt  thereof  the  clerk  of 
the  appellate  court  must  file  the  original,  and  dispose  of  the 
copies  as  he  is  required  to  do  in  the  case  of  transcripts  on  appeal 
in  civil  cases,  and  all  his  services  as  provided  herein  must  be 
without  charge.  The  clerk  of  the  lower  court  must  also  within 
the  time  above  specified  serve  printed  copies  of  the  above  named 
papers  without  charge  upon  the  defendant's  attorney  and  upon 
the  attorney-general.  The  printing  of  the  above  named  papera 
is  a  county  charge.  [Amendment  approved  March  19,  1889; 
Stats.  1889,  p.  325.] 

84  Cal.   582;  115  Cal.   167:   120  Cal.   564. 

CHAPTER  II. 
DISMISSING    AN    APPEAL    FOR    IRREGULARITY. 

Sec.    1248.    For   what   irregularity,   and   how   dismisses. 
1249.    Dismissal    for    want    of   a    return. 

For  what  irregularity,  and  how  dismissed. 

1248.  If  the  appeal  is  irregular  in  any  substantial  particular, 
but  not  otherwise,  the  appellate  court  may,  on  any  day,  on 
motion  of  the  respondent,  upon  five  days'  notice,  accompanied 
with  copies  of  the  papers  upon  which  the  motion  is  founded, 
order  it  to  be  dismissed.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  p.  10.     In  effect  April  9,  1880.] 

69   Cal.    238:   95   Cal.    595;   1^2  Cal.   139. 

Dismissal  for  want  of  a  return. 

1249.  The  court  may  also,  upon  like  motion,  dismiss  the 
appeal,  if  the  return  is  not  made  as  provided  in  section  1246, 
unless  for  good  cause  they  enlarge  the  time  for  that  purpose. 


705     APPEAL — DISMISSING — ARGUMENT — JUDGMENT.    1252-1259- 

CHAPTER  III. 
ARGUMENT   OF  THE   APPEAL 

Sec.    1252.  Appeals,    when  to   be  heard  and  determined. 

1253.  Judgment   cannot   be  reversed   without  argument. 

1254.  Number  of  counsel  to  be  heard. 

1255.  Defendant  need  not  be  present. 

Appeals,  when  to  be  heard  and  determined. 

1252.  All  appeals  in  criminal  cases  must  be  heard  and  deter- 
mined by  the  appellate  court  within  sixty  days  after  the  record 
is  filed  in  said  appellate  court,  unless  continued  on  motion  or 
with  the  consent  of  the  defendant.  [Amendment  approved 
April  9,  1880;  Amendments  1880,  p.  10.    In  effect  April  9,  1880.] 

91   Cal.    29;    97   Cal.    249. 

Judgment  cannot  be   reversed  without  argument. 

1253.  The  judgment  may  be  affirmed  if  the  appellant  fail  to 
appear,  but  can  be  reversed  only  after  argument,  though  the 
respondent  fail  to  appear. 

55   Cal.    298;    97   Cal.    248. 

Number  of  counsel  to  be  heard. 

1254.  Upon  the  argument  of  the  appeal,  if  the  offense  la 
punishable  with  death,  two  counsel  must  be  heard  on  each  side, 
if  they  require  it.  In  any  other  case  the  court  may,  in  its 
discretion,  restrict  the  argument  to  one  counsel  on  each  side. 

55     Cal.     298. 

Defendant  need  not  be  present. 

1255.  The  defendant  need  not  personally  appear  In  the 
appellate  court. 

65     Cal.     298. 

CHAPTER  IV. 
JUDGMENT  UPON  APPEAL. 

Sac.    1258.    Judgment   without   regard   to   technical   errors. 

1259.  What  may  be  reviewed  on  an   appeal  by  defendant. 

1260.  May  reverse,  afHrm,  or  modify  the  judgment,  and  order  new 

trial. 

1261.  New  trial,  where  to  be  had. 

1262.  Defendant  discharged   on   reversal  of  judgment. 

1263.  Judgment  to  be  executed  on  aflBrmance. 

1264.  Judgment  of  appellate  court,  how  entered  and  remitted. 

1265.  Jurisdiction  ceases  after  judgment  remitted. 

Judgment   without    regard   to   technical    errors. 

1258.  After  hearing  the  appeal,  the  court  must  give  judgment 
without  regard  to  technical  errors  or  defects,  or  to  exceptions, 
which  do  not  affect  the  substantial  rights  of  the  parties. 

50  Cal.  471;  53  Cal.  495;  561  Cal.  525;  56  Cal. 
407;  57  Cal.  99;  58  Cal.  266;  59  Cal.  377;  59  Cal. 
604:  62  Cal.  520;  63  Cal.  616;  65  Cal.  149;  65  Cal. 
566;  71  Cal.  387;  73  Cal.  316;  88  Cal.  139;  88 
Cal.  489;  90  Cal.  572;  94  Cal.  119;  102  Cal.  387; 
104  Cal.  484;  105  Cal.  264;  106  Cal.  40;  109  Cal. 
297;  115  Cal.  60;  117  Cal.  657;  120  Cal.  274;  133 
Cal.  73;  133  Cal.  124. 

What  may  be  reviewed  on  an  appeal  by  defendant. 

1259.  Upon  an  appeal  taken  by  the  defendant  from  a  judgment 
the  court  may  review  any  intermediate  order  or  ruling  involv- 
ing the  merits,  or  which  may  have  affected  the  judgment. 

65(  Cal.   100;   119  Cal.  2. 
CRIMES--45 


1260-1266  PENAL  CODE.  706 

May   reverse,   affirm,   or   modify  the   Judgment,   and   order  new 
trial. 

1260.  The  court  may  reverse,  affirm,  or  modify  the  judgment 
or  order  appealed  from,  and  may  set  aside,  affirm,  or  modify 
any  or  all  of  the  proceedings  subsequent  to,  or  dependent  upon, 

•-such  judgment  or  order,  and  may,  if  proper,  order  a  new  trial. 

94    Cal.    386. 

■New  trial,  where  to  be  had. 

1261.  When  a  new  trial  is  ordered  it  must  be  directed  to 
be  had  in  the  court  of  the  county  from  which  the  appeal  was 
taken. 

Defendant  discharged  on  reversal  of  judgment. 

1262.  If  a  judgment  against  the  defendant  is  reversed  with- 
out ordering  a  new  trial,  the  appellate  court  must,  if  he  is  In 
custody,  direct  him  to  be  discharged  therefrom;  or  if  on  bail, 
that  his  bail  be  exonerated;  or  if  money  was  deposited  instead 
of  bail,  that  it  be  refunded  to  the  defendant. 

61    Cal.    380. 

Judgment  to  be  executed  on  affirmance. 

1263.  If  a  judgment  against  the  defendant  is  affirmed,  the 
original  judgment  must  be  enforced. 

54    Cal..  103. 

Judgment  of  appellate  court,  how  entered  and  remitted. 

1264.  When  the  judgment  of  the  appellate  court  is  given, 
it  must  be  entered  in  the  minutes,  and  a  certified  copy  of  the 
entry  forthwith  remitted  to  the  clerk  of  the  court  from  which 
the  appeal  was  taken. 

Jurisdiction    ceases    after   Judgment    remitted. 

1265.  After  the  certificate  of  the  judgment  has  been  remitted 
to  the  court  below,  the  appellate  court  has  no  further  jurisdic- 
tion of  the  appeal  or  of  the  proceedings  thereon,  and  all  orders 
necessary  to  carry  the  judgment  into  effect  must  be  mad*  by 
the  court  to  which  the  certificate  is  remitted. 


707  JUDGMENT  ON  APPEAL — BAIL. 

TITLE    X. 
MISCELLANEOUS  PROCEEDINGS. 

Chap.  I,  Bail,  1268-1317. 

II.  Who  may  be  Witnesses  in  Criminal  Actioas,   1321-3. 

III.  Compelling  the  Attendance  of  Witnesses,  1326-33. 

IV.  Examination  of  Witnesses   Conditionally,   1335-46. 

v.    Examination   of   Witnesses   on   Commission,    1349-62. 

VI.  Inquiry   into   the   Insanity   of   the    Defendant   before 

Trial  or  after  Conviction,  1367-73. 
VII.    Compromising  certain  Public  Offenses  by  leave  of  the 

Court,  1377-9. 
VIII.    Dismissal  of  the  Action,   before  or  after  Indictment, 
for  want  of  Prosecution  or  otherwise,  1382-7. 
IX.    Proceedings  against  Corporations,  1390-7. 
X.     Entitling  Affidavits,  1401. 
XI.    Errors  and  Mistakes  in  PleadiHg  and  other  Proceed- 
ings, 1404. 
XII.    Disposal  of  Property  Stolen  or  Embezzled,  1407-13. 
XIII.    Reprieves,  Commutations,  and  Pardons,  1417-23. 

CHAPTER  I. 
BAIL. 

Article  I.  In  what  cases  the  defendant  may  be  admitted  to  ball. 
II.  Bail  upon  being  held  to  answer  before  indictment. 

III.  Bail  upon  an  indictment  before  conviction. 

IV.  Bail  on  appeal. 

V.  Deposit  instead  of  bail. 
VI.  Surrender  of  the  defendant. 

VII.  Forfeiture  of  the  undertaking  of  bail  or  of  the  deposit 

of  money. 

VIII.  Recommitment  of  the  defendant  after  having  given 

bail  or  deposited  money  instead  of  bail. 


1268-1273  PENAL  CODE.  708 

ARTICLE  I. 
IN   WHAT   CASES   THE   DEFENDANT   MAY    Bt.   ADMITTED 

10   BAIL. 

8ec.    1268.  Admission  to  ball  defined. 

1269.  Taking  of  bail   defined. 

1270.  Offense  not  l)ailable. 

1271.  Defendant  when  admitted  to  ball  before  conviction. 

1272.  When  admitted  to  bail  after  conviction  and  upon  appeal. 

1273.  Nature  of  ball. 

1274.  When  bail  is  matter  of  discretion,  notice  of  application  must 

be  given   to  district  attorney. 

Admission  to  bail  defined. 

1268.  Admission  to  bail  is  the  order  of  a  competent  court 
or  magistrate  that  the  defendant  be  discharged  from  actual 
custody  upon  bail. 

Taking  of  bail  defined. 

1269.  The  taking  of  bail  consists  in  the  acceptance,  by  a 
competent  court  or  magistrate,  of  the  undertaking  of  sufficient 
bail  for  the  appearance  of  the  defendant,  according  to  the  terms 
of  the  undertaking,  or  that  the  bail  will  pay  to  the  people  of 
this  state  a  specified  sum. 

Offense  not  bailable. 

1270.  A  defendant  charged  with  an  offense  punishable  with 
death  cannot  be  admitted  to  bail,  when  the  proof  of  his  guilt 
is  evident  or  the  presumption  thereof  great.  The  finding  of  an. 
indictment  does  not  add  to  the  strength  of  the  proof  or  the  pre- 
sumptions to  be  drawn  therefrom. 

68   Cal.    177;    So   Cal.    365;   92  Cal.    189. 

Defendant  when  admitted  to  bail  before  conviction. 

1271.  If  the  charge  is  for  any  other  offense,  he  may  be 
admitted  to  bail  before  conviction,  as  a  matter  of  right. 

54   Cal.    103;    68   Cal.    177;    92   Cal.    189. 

When  admitted  to  bail  after  conviction  and  upon  appeal. 

1272.  After  conviction  of  an  offense  not  punishable  with 
death,  a  defendant  who  has  appealed  may  be  admitted  to  bail: 

1.  As  a  matter  of  right,  when  the  appeal  is  from  a  judgment 
imposing  a  fine  only; 

2.  As  a  matter  of  discretion  in  all  other  cases. 

48    Cal.    552;    49    Cal.    681;    62    Cal.    491;    68    Cal. 
177;    89    Cal.    80;    112    Cal.    629. 

Nature  of  bail. 

12/3.  If  the  offense  is  bailable,  the  defendant  may  be  ad- 
mitted to  bail  before  conviction: 

First — For  his  appearance  before  the  magistrate,  on  the  ex- 
amination of  the  charge,  before  being  held  to  answer. 

Second — To  appear  at  the  court  to  which  the  magistrate  is  re- 
quired to  return  the  depositions  and  statement,  upon  the 
defendant  being  held  to  answer  after  examination. 

Third — After  indictment,  either  before  the  bench  warrant  Is 
issued  for  his  arrest,  or  upon  any  order  of  the  court  committing 
him,  or  enlarging  the  amount  of  bail,  or  upon  his  being  surren- 


709  BAIL  BEFORE  INDICTMENT.  1274-1278 

dered  by  his  bail  to  answer  the  indictment  in  the  court  in  which 
it  is  found,  or  to  which  it  may  be  transferred  for  trial. 

And  after  conviction,  and  upon  an  appeal: 

First — If  the  appeal  is  from  a  judgment  imposing  a  fine  only, 
on  the  undertaking  of  bail  that  ne  will  pay  the  same,  or  such 
part  of  it  as  the  appellate  court  may  direct,  if  the  judgment  is 
affirmed  or  modified,  or  the  appeal  is  dismissed. 

Second — If  judgment  of  imprisonment  has  been  given,  that  he 
will  surrender  himself  in  execution  of  the  judgment,  upon  its 
being  affirmed  or  modified,  or  upon  the  appeal  being  dismissed,  or 
that  in  case  the  judgment  be  reversed,  and  that  the  cause  be 
remanded  for  a  new  trial,  that  he  will  appear  in  the  court  to 
which  said  cause  may  be  remanded,  and  submit  himself  to  the 
orders  and  process  thereof.  [Amendment  approved  February 
15,  1876;   Amendments  1875-6,  p.  116.     In  effect  in  sixty  days.] 

.';4    Cal.    103. 

When  bail  is  matter  of  discretion,  notice  of  application  must  be 
given  to  district  attorney. 
1274.  When  the  admission  to  bail  is  a  matter  of  discretion, 
the  court  or  officer  to  whom  the  application  is  made  must 
require  reasonable  notice  thereof  to  be  given  to  the  district 
attorney  of  the  county. 

ARTICLE  II. 
BAIL   UPON   BEING  HELD    TO    ANSWER  BEFORE   INDICT- 
MENT. 

Sec.    1277.  What  magistrates  may  admit  to  bail. 

1278.  Bail,  how  put  in,  and  form  of  the  imdertaliing. 

1270.  Qualifications   of   bail. 

1280.  Kail,   how    to   justify. 

1281.  On  allowance  of  bail,   defendant  to  be  discharged. 

What  magistrates  may  admit  to  bail. 

1277.  When  the  defendant  has  been  held  to  answer  upon  an 
examination  for  a  public  offense,  the  admission  to  bail  may  be 
by  the  magistrate  by  whom  he  is  so  held,  or  by  any  magistrate 
who  has  power  to  issue  the  writ  of  habeas  corpus. 

Bail,  how  put  in,  and  form  of  the  undertaking. 

1278.  Bail  is  put  in  by  a  written  undertaking,  executed  by 
two  sufficient  sureties,  (with  or  without  the  defendant,  in  the 
discretion  of  the  magistrate)  and  acknowledged  before  the  court 
or  magistrate,  in  substantially  the  following  form: 

An  order  having  been  made  on  the  day  of  ,  A.  D. 

eighteen ,  by  A  B,  a  justice  of  the  peace  of county,  [or 

as  the  case  may  be]  that  C  D  be  held  to  answer  upon  a  charge  of 
[stating  briefly  the  nature  of  the  offense],  upon  which  he  has 

been  admitted  to  bail  in  the  sum  of  dollars;   we,  E  F  and 

G  H,  [stating  their  place  of  residence  and  occupation]  hereby 
undertake  that  the  above  named  C  D  will  appear  and  answer 
the  charge  above  mentioned,  in  whatever  court  it  may  be  prose- 
cuted, and  will  at  all  times  hold  himself  amenable  to  the  or- 
ders and  process  of  the  court,  and  if  convicted,  will  appear  for 
judgment  and  render  himself  in  execution  thereof,  or  if  he  fails 
to  perform  either  of  these  conditions,  that  we  will  pay  to  the 
people  of  the  state  of  California  the  sum  of  dollars  [in- 
serting the  sum  in  which  the  defendant  is  admitted  to  bail]. 

54   Cal.    410. 


1279-1286  PENAL  CODE.  710 

Qualifications  of  bail. 

1279.  The  qualifications  of  bail  are  as  follows: 

1.  Each  of  them  must  be  a  resident,  householder,  or  free- 
holder within  the  state;  but  the  court  or  magistrate  may  refuse 
to  accept  any  person  as  bail  who  is  not  a  resident  of  the  county 
where  bail   is  offered; 

2.  They  must  each  be  worth  the  amount  specified  in  the 
undertaking,  exclusive  of  property  exempt  from  execution;  but 
the  court  or  magistrate,  on  taking  bail,  may  allow  more  than 
two  sureties  to  justify  severally  in  amounts  less  than  that 
expressed  in  the  undertaking,  if  the  whole  justification  be  equiv- 
alent to  that  of  sufficient  bail. 

Bail,  how  to  justify. 

1280.  The  bail  must  in  all  cases  justify  by  affidavit  taken 
before  the  magistrate,  that  they  each  possess  the  qualifications 
provided  in  the  preceding  section.  The  magistrate  may  further 
examine  the  bail  upon  oath  concerning  their  sufficiency,  in  such 
manner  as  he  may  deem  proper. 

On  allowance  of  bait,  defendant  to  be  discharged. 

1281.  Upon  the  allowance  of  bail  and  the  execution  of  the 
undertaking,  the  magistrate  must,  if  the  defendant  is  in  custody, 
make  and  sign  an  order  for  his  discharge,  upon  the  delivery  of 
which  to  the  proper  officer,  the  defendant  must  be  discharged. 

54   Cal.    411. 

ARTICLE  III. 
BAIL  UPON  AN  INDICTMENT  BEFORE  CONVICTION. 

Sec.    1284.  When  offense  Is  not  capital. 

1285.  When  the  offense  Is  capital. 

1286.  Ball   on   hab'eas   corpus. 

1287.  Form  of  undertaking. 

1288.  Sections  applicable  to  quallflcatlons,   etc. 

1289.  Increase  or  reduction  of  ball. 

When  offense  is  not  capital. 

1284.  When  the  offense  charged  is  not  punishable  with  death, 
the  officer  serving  the  bench  warrant  must,  if  required,  take  the 
defendant  before  a  magistrate  in  the  county  in  which  it  is  issued, 
or  in  which  he  is  arrested,  for  the  purpose  of  giving  bail. 
[Amendment  approved  April  9,  1880;  amendments  1880,  p.  26. 
In  effect  April  9,  1880.] 

65    Cal.    682. 

When  the  offense  is  capital. 

1285.  If  the  offense  charged  is  punishable  with  death,  the 
officer  arresting  the  defendant  must  deliver  him  into  custody, 
according  to  the  command  of  the  bench  warrant.  [Amendment 
approved  April  9,  1880;  amendments  1880,  p.  26.  In  effect  April 
9.  1880.] 

59   Cal.    417.  ■•     ■ 

Bail  on  habeas  corpus. 

1286.  When  the  defendant  is  so  delivered  into  custody,  he 
must  be  held  by  the  sheriff,  unless  admitted  to  bail  on  exam- 
ination upon  a  writ  of  habeas  corpus. 

69    Cal.    417. 


711  BAIL  ON  INDICTMENT — APPEAL.  1287-1292 

Form  of  undertaking. 

1287.  The  bail  must  be  put  in  by  a  written  undertaking, 
executed  by  two  sufficient  sureties,  (with  or  without  the  defend- 
ant, in  the  discretion  of  the  court  or  magistrate)  and  ac- 
knowledged before  the  court  or  magistrate,  in  substantially  the 
following  form: 

An  indictment  having  been  found  on  the  —  day  of ,  A.  D. 

eighteen ,  in  the  county  court  of  the  county  of ,  charging 

A  B  with  the  crime  of  — ■ ,  [designating  it  generally]  and  he 

having  been  admitted  to  bail  in  the  sum  of dollars,  we,  C  D 

and  E  F,  of [stating  their  place  of  residence  and  occupation] 

hereby  undertake  that  the  above-named  A  B  will  appear  and 
answer  the  indictment  above  mentioned,  in  whatever  court  it 
may  be  prosecuted,  and  will  at  all  times  render  himself  amenable 
to  the  orders  and  process  of*  the  court,  and,  if  convicted,  will 
appear  for  judgment  and  render  himself  in  execution  thereof; 
or,  if  he  fails  to  perform  either  of  these!  conditions,  that  we  will 

pay  to  the  people  of  the  state  of  California  the  sum  of  

dollars  [inserting  the  sum  in  which  the  defendant  is  admitted 
to  bail]. 

63  Cal.   409. 

Sections   applicable  to   qualifications,   etc. 

1288.  The  provisions  contained  in  sections  twelve  hundred 
and  seventy-nine,  twelve  hundred  and  eighty,  and  twelve  hun- 
dred and  eighty-one,  in  relation  to  bail  before  indictment,  apply 
to  bail  after  indictment,  [Amendment,  approved  March  30,  1874; 
amendments  1873-4,  p.  450.     In  effect  July  1,  1874.] 

Increase  or   reduction  of  bail. 

1289.  After  a  defendant  has  been  admitted  to  oail  upon  an 
indictment  or  information,  the  court  in  which  the  charge  is 
pending  may,  upon  good  cause  shown,  either  increase  or  reduce 
the  amount  of  bail.  If  the  amount  be  increased,  the  court  may 
order  the  defendant  to  be  committed  to  actual  custody,  unless 
he  give  bail  in  such  increased  amount.  If  application  be  made 
by  the  defendant  for  a  reduction  of  the  amount,  notice  of  the 
application  must  be  served  upon  the  district  attorney.  [Amend- 
ment, approved  April  9,  1880;  amendments  1880,  p.  27.  In. 
effect  April  9,  1880.] 

ARTICLE  IV. 
BAIL   ON   APPEAL. 

Sec.    1291.    Who  may  admit  to  balL 

1292.    Bail,  qualifications  of,  and  condition  of  undertaking. 

Who  may  admit  to  bail. 

1291.  In  the  cases  in  which  defendant  may  be  admitted  to  ball 
upon  an  appeal,  the  order  admitting  him  to  bail  may  be  made 
by  any  magistrate  having  the  power  to  issue  a  writ  of  habeas 
corpus,  or  by  the  magistrate  before  whom  the  trial  was  had. 
[Amendment,  approved  February  25,  1878;  amendments  1877-8,. 
p.  122.     In  effect  February  25,  1878.] 

Bail,  qualifications  of,  and  condition  of  undertaking. 

1292.  The  bail  must  possess  the  qualifications,  and  must  be 
put  in,  in  all  respects,  as  provided  in  article  II  of  this  chapter, 
except  that  the  undertaking  must  be  conditioned  as  prescribed 
in  section  1273,  for  undertakings  of  bail  on  appeal. 


1295-1301  PENAL  CODE.  712 

ARTICLE  V. 

DEPOSIT  INSTEAD  OF  BAIL. 

Sec.    1295.    Deposit,   when  and  how  made. 

129fi.    May,   after  hail   Is  given  and  before  forfeiture. 

1297.    Deposit  to  be  applit'd  to  payment  of  judgment  and  fine. 

Deposit,  when  and  how  made. 

1295.  The  defendant,  at  any  time  after  an  order  admitting 
him  to  bail,  instead  of  giving  bail  may  deposit  with  the  clerk 
of  the  court  in  which  he  is  held  to  answer,  the  sum  mentioned 
in  the  order,  and  upon  delivering  to  the  officer  in  whose  custody 
he  is  a  certificate  of  the  deposit,  he  must  be  discharged  from 
custody. 

83  Cal.   391. 

May,   after  bail    is  given   and   before  forfeiture. 

1296.  If  the  defendant  has  given  bail,  he  may,  at  any  time 
before  the  forfeiture  of  the  undertaking,  in  like  manner  deposit 
the  sum  mentioned  in  the  recognizance,  and  upon  the  deposit 
being  made  the  bail  is  exonerated. 

Deposit  to  be  applied  to  payment  of  judgment  and  fine. 

1297.  When  money  has  been  deposited,  if  it  remains  on 
deposit  at  the  time  of  a  judgment  for  the  payment  of  a  fine, 
the  county  clerk  must,  under  the  direction  of  the  court,  apply 
the  money  in  satisfaction  thereof,  and  after  satisfying  the  fine 
and  costs,  must  refund  the  surplus,  if  any,  to  the  defendant. 

ARTICLE  VI. 
SURRENDER  OF  THE  DEFENDANT. 

Sec.    1300.    Surrender,   by  whom,   when,   and  how  made. 

1301.  Defendant,   how   surrendered. 

1302.  Return    of   deposit   on    surrender. 

Surrender,   by  whom,   when,   and   how   made. 

1300.  At  any  time  before  the  forfeiture  of  their  undertaking 
the  bail  may  surrender  the  defendant  in  their  exoneration,  or 
he  may  surrender  himself,  to  the  officer  to  whose  custody  he 
was  committed  at  the  time  of  giving  bail,  in  the  following 
manner: 

1.  A  certified  copy  of  the  undertaking  of  the  bail  must  be 
delivered  to  the  officer,  who  must  detain  the  defendant  in  his 
custody  thereon  as  upon  a  commitment,  and  by  a  certificate 
in  writing  acknowledge  the  surrender; 

2.  Upon  the  undertaking  and  the  certificate  of  the  officer, 
the  court  in  which  the  action  or  appeal  is  pending  may,  upon 
notice  of  five  days  to  the  district  attorney  of  the  county,  with 
a  copy  of  the  undertaking  and  certificate,  order  that  the  bail  be 
exonerated,  and  on  filing  the  order  and  the  papers  used  on  the 
application,  they  are  exonerated  accordingly. 

102   Cal.    312. 

Defendant,  how  surrendered. 

1301.  For  the  purpose  of  surrendering  the  defendant,  the 
bail,  at  any  time  before  they  are  finally  discharged,  and  at  any 
place  within  the  state,  may  themselves  arrest  him,  or  by  a 
written  authority,  indorsed  on  a  certified  copy  of  the  under- 
taking, may  empower  any  person  of  suitable  age  and  discretion 
to  do  so. 


713  FORFEITURE  OF  BAIL.  1H02-1307 

Return  of  deposit  on  surrender. 

1302.  If  money  has  been  deposited  Instead  of  bail,  and  the 
defendant,  at  any  time  before  the  forfeiture  thereof,  surrenders 
himself  to  the  officer  to  whom  the  commitment  was  directed,  in 
the  manner  provided  in  the  last  two  sections,  the  court  must 
order  a  return  of  the  deposit  to  the  defendant,  upon  producing 
the  certificate  of  the  officer  showing  the  surrender,  and  upon  a 
notice  of  five  days  to  the  district  attorney,  with  a  copy  of  the 
certificate. 

ARTICLE  VII. 

FORFEITURE  OF  THE  UNDERTAKING  OF  BAIL  OR  OF  THE 

DEPOSIT    OF    MONEY. 

Sec.    1.S0.5.    How  forfeited,  and  how  forfeiture  discharged. 

1306.  Forfeiture  to  be  enforced  by  action. 

1307.  Deposit,   when  forfeited,   liow  disposed   of. 

How  forfeited,  and  liow  forfeiture  discharged. 

1305.  If,  without  sufficient  excuse,  the  defendant  neglects  to 
appear  for  arraignment  or  for  trial  or  judgment,  or  upon  any 
other  occasion  when  his  presence  in  court  may  be  lawfully 
required,  or  to  surrender  himself  in  execution  of  the  judgment, 
the  court  must  direct  the  fact  to  be  entered  upon  Its  minutes, 
and  the  undertaking  of  bail,  or  the  money  deposited  instead  of 
bail,  as  the  case  may  be,  is  thereupon  declared  forfeited.  But 
if  at  any  time  before  the  final  adjournment  of  the  court,  the 
defendant  or  his  bail  appear  and  satisfactorily  excuse  his 
neglect,  the  court  may  direct  the  forfeiture  of  the  undertaking 

or  the  deposit  to  be  discharged   upon  such  terms   as  may  be 
just. 

102   Cal.    312. 

Forfeiture  to  be  enforced  by  action. 

1306.  If  the  forfeiture  is  not  discharged,  as  provided  in  the 
last  section,  the  district  attorney  may  at  any  time  after  the 
adjournment  of  the  court  proceed  by  action  only  against  the 
bail  upon  their  undertaking. 

63  Cal.  410. 

Deposit,  when  forfeited,   how  disposed  of. 

1307.  If,  by  reason  of  the  neglect  of  the  uefendant  to  appear, 
money  deposited  instead  of  bail  is  forfeited,  and  the  forfeiture 
is  not  discharged  or  remitted,  the  clerk  with  whom  it  is  depos- 
ited must,  immediately  after  the  final  adjournment  of  the  court, 
pay  over  the  money  deposited  to  the  county  treasurer. 


1310-1314  PENAL  CODE.  714 

ARTICLE  VIII. 

RECOMMITMENT    OF    THE    DEFENDANT,    AFTER    HAVING 

GIVEN  BAIL  OR  DEPOSITED  MONEY  INSTEAD  OF  BAIL. 

Sec.    1310.  In  what  cases. 

1311.  Contents    of    order. 

1312.  Defendant  may   be  arrested   In  any   county. 

1313.  If  for  failure  to  appear,  defendant  must  bo  committed. 

1314.  If  for  other  cause,   he  may  be  admitted  to  bail. 

1315.  Ball  in  such  case,   by  whom  taken. 

1316.  Form  of  the  undertaking. 

1317.  Ball  must  possess  what  qualifications,  and  how  put  In. 

In  what  cases. 

1310.  The  court  to  which  the  committing  magistrate  returns 
the  depositions,  or  in  which  an  indictment,  information,  or 
appeal  is  pending,  or  to  which  a  judgment  on  appeal  is  remitted 
to  be  carried  into  effect,  may,  by  an  order  entered  upon  its 
minutes,  direct  the  arrest  of  the  defendant  and  his  commitment 
to  the  officer  to  whose  custody  he  was  committed  at  the  time 
of  giving  bail,  and  his  detention  until  legally  discharged,  in 
the  following  cases: 

1.  When,  by  reason  of  his  failure  to  appear,  he  has  incurred 
a  forfeiture  of  his  bail,  or  of  money  deposited  instead  thereof. 

2.  When  it  satisfactorily  appears  to  the  court  tnat  his  bail, 
oc  either  of  them,  are  dead  or  insufficient,  or  have  removed  from 
the  state. 

3.  Upon  an  Indictment  being  found  or  information  filed  in 
the  cases  provided  in  section  nine  hundred  and  eighty-five. 
[Amendment,  approved  April  9,  1880;  amendments  1880,  p.  27. 
In  effect  April  9,  1880.] 

Contents  of  order. 

1311.  The  order  for  the  recommitment  of  the  defendant  must 
recite  generally  the  facts  upon  which  it  is  founded,  and  direct 
that  the  defendant  be  arrested  by  any  sheriff,  constable,  marshal, 
or  policeman  in  this  state,  and  committed  to  the  officer  in  whose 
custody  he  was  at  the  time  he  was  admitted  to  bail,  to  be 
detained  until  legally  discharged. 

Defendant  may  be  arrested   in   any  county. 

1312.  The  defendant  may  be  arrested  pursuant  to  the  order, 
upon  a  certified  copy  thereof,  in  any  county,  in  the  same  manner 
as  upon  a  warrant  of  arrest,  except  that  when  arrested  in  another 
county  the  order  need  not  be  indorsed  by  a  magistrate  of  that 
county. 

If  for  failure  to  appear,  defendant  must  be  committed. 

1313.  If  the  order  recites,  as  the  ground  upon  which  it  is 
made,  the  failure  of  the  defendant  to  appear  for  judgment  upon 
conviction,  the  defendant  must  be  committed  according  to  the 
requirement  of  the  order. 

If  for  other  cause,  he  may  be  admitted  to  bail. 

1314.  If  the  order  be  made  for  any  other  cause,  and  the 
offense  is  bailable,  the  court  may  fix  the  amount  of  bail,  and 
may  cause  a  direction  to  be  inserted  in  the  order  that  the 
defendant  be  admitted  to  bail  in  the  sum  fixed,  which  must  be 
specified  in  the  order. 


715  RECOMMITMENT — WITKESStS.  1315-1323 

Bail  in  such  case,  by  whom  taken. 

1315.  When  the  defendant  is  admitted  to  bail,  the  bail  may 
be  taken  by  anj'  magistrate  in  the  county,  having  authority  in  a 
similar  case  to  admit  to  bail,  upon  the  holding  of  the  defendant 
to  answer  before  an  indictment,  or  by  any  other  magistrate 
desi^rnated  by  the  court. 

Form  of  the  undertaking. 

1316.  When  bail  Is  taken  upon  the  recommitment  of  the 
defendant,  the  undertaking  must  be  in  substantially  the  fol- 
lowing form: 

An   order  having  been  made  on  the  —  day  of  ,  A.  D. 

eighteen ,  by  the  court,  [naming  it]  that  A  B   be  admitted 

to  bail  in  the  sum  of dollars,  in  an  action  pending  in  that 

court  against  him  in  behalf  of  the  people  of  the  state  of  Califor- 
nia, upon  an  [information,  presentment,  indictment,  or  appeal, 
as  the  case  may  be],  we,  C  D  and  E  F,  of  [stating  their  places 
of  residence  and  occupation],  hereby  undertake  taat  the  above- 
named  A  B  will  appear  in  that  or  any  other  court  in  which 
his  appearance  may  be  lawfully  required  upon  that  [information, 
presentment,  indictment,  or  appeal,  as  the  case  may  oe],  and 
will  at  all  times  render  himself  amenable  to  its  orders  and 
process,  and  appear  for  judgment  and  surrender  himself  in 
execution  thereof;  or  if  he  fails  to  perform  either  of  these 
conditions,  that  we  will  pay  to  the  people  of  tue  state  of  Califor- 
nia the   sum   of  dollars      [insert  the  sum   in   which  the 

defendant  is  admitted  to  bail]. 

Bail   must  possess  what  qualifications,  and   how  put   in. 

1317.  The  bail  must  possess  the  qualifications,  and  must  be 
put  in,  in  all  respects,  in  the  manner  prescribed  in  article  II 
of  this  chapter. 

CHAPTER  II. 
WHO  MAY  BE  WITNESSES  IN  CRIMINAL  ACTIONS. 

Sec.    1321.    Who   are   competent   witnesses. 

1322.  When  husband  and  wife  are  not  competent  witnesses. 

1323.  When   the   defendant   is   not   a   competent  witness. 

Who    are    competent    witnesses. 

1321.  The  rules  for  determining  the  competency  of  witnesses 
in  civil  actions  are  applicable  also  to  criminal  actions  and  pro- 
ceedings, except  as  otherwise  provided  in  this  code. 

47  Cal.  126;  70  Cal.   54;   104  Cal.   4S6;  106  Cal.   92. 

When  husband  and  wife  are  not  competent  witnesses. 

1322.  Except  with  the  consent  of  both,  or  in  cases  of  criminal 
violence  upon  one  by  the  other,  neither  husband  nor  wife  is  a 
competent  witness  for  or  against  the  other  in  a  criminal  action 
or  proceeding  to  which  one  or  both  are  parties.  [Amendment 
approved  March  30,  1874;  amendments  1873-4,  p.  451.  In  effect 
July  1,  1874.] 

64  Cal.  257:  70  Cal.  54;  73  Cal.  627. 

When  the  defendant  is  not  a  competent  witness. 

1323.  A  defendant  in  a  criminal  action  or  proceeding  cannot 
be  compelled  to  be  a  witness  against  himself;  but  if  he  offer 
himself  as  a  witness,  he  may  be  cross-examined  by  the  counsel 
for  the  people  as  to  all  matters  about  which  he  was  examined 
in  chief.    His  neglect  or  refusal  to  be  a  witness  cannot  in  any 


1326-1327  PENAL  CODE.  716 

manner  prejudice  him  nor  be  used  against  him  on  the  trial  or 
proceeding.  [Amendment,  approved  March  30,  1874;  amend- 
ments 1873-4,  p.  451.     In  effect  July  i,  1874.] 

47  Cal.  126;  aA  Cal.  67;  57  Cal.  573;  66  Cal.  603; 
70  Cal  54;  73  Cal.  245;  75  Cal.  388;  75  Cal.  416; 
78  Cal.  92;  81  Cal.  116;  83  Cal.  139;  98  Cal.  238; 
»9  Cal  361;  99  Cal.  442;  100  Cal.  475;  100  Cal. 
481;  104  Cal.  487;  118  Cal.  461;  122  Cal.  126; 
122  Cal.  497. 


CHAPTER  III. 
COMPELLING  THE  ATTENDANCE  OF  WITNESSES. 

Sec.    132fi.    Subpoena   dcflnoil.    and    who    may    issue. 

1327.  Form   of  subpoena. 

1328.  Subpoena,   by   whom  and  how   served. 

l.'?20.  Expenses  of   witness   from   without   the  county,   or   poor. 

13:?0.  Attendanee  of  witness  residing  or  served  out  of  the  county. 

13.S1.  Dlsobediehee   to   subpoena,    etc. 

1332.  Failure   to  appear,   undertaking  forfeited. 

13.33.  Temporary    removal   of    imprisoned    witness. 

Subpoena  defined,  and  who  may   issue. 

1326.  Tlie  process  by  which  the  attendance  of  a  witness 
before  a  court  or  magistrate  is  required  is  a  subpoena;  it  may 
be  signed  and  issued  by: 

1.  A  magistrate  before  whom  a  complaint  is  laid,  for  witnesses 
in  the  state,  either  on  behalf  of  the  people  or  of  the  defendant. 

2.  The  district  attorney,  for  witnesses  in  the  state,  in  support 
of  the  prosecution,  or  for  such  other  witnesses  as  the  grand 
jury,  upon  an  investigation  pending  before  them,  may  direct. 

3.  The  district  attorney,  for  witnesses  in  the  state,  in  support 
of  an  indictment  or  information,  to  appear  before  the  court  in 
which  it  is  to  be  tried. 

4.  The  clerk  of  the  court  in  which  an  indictment  or  infor- 
mation is  to  be  tried;  and  he  must,  at  any  time,  upon  application 
of  the  defendant,  and  without  charge,  issue  as  many  blank  sub- 
poenas, subscribed  by  him  as  clerk,  for  witnesses  in  the  state, 
as  the  defendant  may  require.  [Amendment,  approved  April  9, 
1880;    amendments  1880,  p.  27.     In  effect  April  9,  1880.] 

Form  of  subpoena. 

1327.  A  subpoena  authorized  by  the  last  section  must  be  sub- 
stantially  in  the  following  form: 

The  people  of  the  state  of  California  to  A  B: 

You  are  commanded  to  appear  before  C    D  ,  a  justice  of  the 

peace  of township,  in county,  [or  as  the  case  may 

be]  at  [naming  the  place],  on  [stating  the  day  and  hour],  as  a 
witness  in  a  criminal  action  prosecuted  by  the  people  of  the 
state  of  California  against  E  F. 

Given   under  my   hand  this  —  day  of  ,   A.   D.  eighteen 

,  G  H,  justice  of  the  peace,  [or  "J  K,  district  attor- 
ney," or  "By  order  of  the  court,  L  M  ,  clerk,"  or  as  the  case 
may  be].  If  books,  papers,  or  documents  are  required,  a 
direction  to  the  following  effect  must  be  contained  in  the  sub- 
poena: "And  you  are  required,  also,  to  bring  with  you  the 
following"  [describing  intelligibly  the  books,  papers,  or  doc- 
uments required]. 


717  COMPELLING  ATTENDANCE  OF  WITNESSES.      1328-1333 

Subpoena,  by  whom  and  how  served. 

1328.  A  subpoena  may  be  served  by  any  person,  but  a  peace 
officer  must  serve  in  his  county  any  subpoena  delivered  to  him 
foi:  service,  either  on  the  part  of  the  people  or  of  the  defendant, 
and  must,  without  delay,  make  a  written  return  of  the  service, 
subscribed  by  him,  stating  the  time  and  place  of  service.  The 
service  is  made  by  showing  the  original  to  the  witness  person- 
ally   and  informing  him  of  its  contents. 

Expenses  of  witness  from  without  the  county,  or  poor. 

1329.  When  a  person  attends  before  a  magistrate,  grand  jury, 
or  court,  as  a  witness  in  a  criminal  case,  upon  a  subpoena  or  In 
pursuance  of  an  undertaking,  and  it  appears  that  he  has  come 
from  a  place  outside  of  the  county,  or  that  he  is  poor  and  unable 
to  pay  the  expenses  of  such  attendance,  the  court,  at  its  dis- 
cretion, if  the  attendance  of  the  witness  be  upon  a  trial,  by  an 
order  upon  its  minutes,  or,  in  any  other  case,  the  judge,  at  his 
discretion,  by  a  written  order,  may  direct  the  county  auditor  to 
draw"  his  warrant  upon  the  county  treasurer  in  favor  of  witness 
for  a  reasonable  sum,  to  be  specified  in  the  order,  for  the  nec- 
essary expenses  of  the  witness.  [Amendment,  approved  March 
8,  1876;  amendments  1875-6,  p.  117.    In  effect  in  sixty  days.j 

64  Cal.   244;   109  Cal.   ZU;  130  Cal.    676. 

Attendance  of  witness  residing  or  served  out  of  the  county. 

1330.  No  person  is  obliged  to  attend  as  a  witness  before  a 
court  or  magistrate  out  of  the  county  where  the  witness  resides, 
or  is  served  with  the  subpoena,  unless  the  judge  of  the  court 
in  which  the  offense  is  triable,  or  a  justice  of  the  Supreme  Court, 
or  a  judge  of  a  Superior  Court,  upon  an  affidavit  of  the  district 
attorney  or  prosecutor,  or  of  the  defendant,  or  his  counsel, 
stating  that  he  believes  the  evidence  of  the  witness  is  material, 
and  his  attendance  at  the  examination  or  trial  necessary,  shall 
indorse  on  the  subpoena  an  order  for  the  attendance  of  the 
witness.  [Amendment,  approved  April  12,  1880;  amendments 
1880,  p.  34.     In  effect  April  12,  1880.] 

TO   Cal.    205;    132   Cal.    305. 

Disobedience  to  subpoena,  etc. 

1331.  Disobedience  to  a  subpoena,  or  a  refusal  to  be  sworn  or 
to  testify  as  a  witness,  may  be  punished  by  the  court  or  magis- 
trate as  a  contempt.  A  witness  disobeying  a  subpoena  issued 
on  the  part  of  the  defendant,  unless  he  show  good  cause  for  his 
nonattendance,  is  liable  to  the  defendant  in  the  cum  of  one 
hundred  dollars,  which  may  be  recovered  in  a  civil  action. 

Failure   to   appear,    undertaking   forfeited. 

1332.  When  a  witness  has  entered  into  an  undertaking  to 
appear,  upon  his  failure  to  do  so  the  undertaking  is  forfeited  In 
the  same  manner  as  undertakings  of  bail. 

Temporary    removal    of   imprisoned   witness. 

1333.  When  the  testimony  of  a  material  witness  for  the  peo- 
ple is  required  in  a  criminal  action,  before  a  court  of  record  of 
this  state,  and  such  witness  is  a  prisoner  in  the  state  prison, 
or  in  a  county  jail,  an  order  for  his  temporary  removal  from  such 
prison  or  jail,  and  for  his  production  before  such  court,  may  be 
made  by  the  court  in  which  the  action  is  pending,  or  by  the 
judge  thereof;  but  in  case  the  prison  or  jail  is  out  of  the  county 
in  which  the  application  is  made,  such  order  shall  only  be  made 


1335-1338  PENAL  CODE.  718 

upon  the  affidavit  of  the  district  attorney,  or  other  person,  on 
behalf  of  the  people,  showing  that  the  testimony  is  material  and 
necessary;  and  even  then  the  granting  of  the  order  shall  be  in 
the  discretion  of  the  court  or  judge.  The  order  shall  be  executed 
"by  the  sheriff  of  the  county  in  which  it  shall  be  made,  whose 
duty  it  shall  be  to  bring  the  prisoner  before  the  proper  court,  to 
safely  keep  him,  and  when  he  is  no  longer  required  as  a  wit- 
ness, to  return  him  to  the  prison  or  jail  whence  he  was  taken; 
the  expense  of  executing  such  order  shall  be  paid  by  the  county 
In  which  the  order  shall  be  made.  [New  section  approved  April 
1,  1878;   amendments  1877-8,  p.  123.    In  effect  April  1,  1878.] 

82  Cal.  457. 

CHAPTER  IV. 

EXAMINATION    OF    WITNESSES    CONDITIONALLY. 

Bee.    1335.  Witnesses  examined   conditionally   for  the  defendant. 

1336.  In  what  cases  defendant  may  apply  for  the  order. 

.  1337.  Application,   how  made. 

1338.  Application,  to  whom  made. 

1339.  Order,   when  granted  and   what  to  contain. 

1340.  Examination    in    absence   of   district    attorney. 

1341.  If   facts   disproved,    examination    not    to   proceed. 

1342.  Attendance  of  witness,   how  enforced. 

1343.  Testimony,  how  taken  and  authenticated. 

1344.  Deposition  to  be  transmitted  to  clerk. 

1345.  When   may    be   read   In    evidence.     Objections,    etc. 

1346.  Deposition  of  witness  Imprisoned  In  another  county. 

Witnesses   examined   conditionally   for  the   defendant. 

1335.  When  a  defendant  has  been  held  to  answer  a  charge 
for  a  public  offense,  he  may,  either  before  or  after  an  indict- 
ment or  information,  have  witnesses  examined  conditionally, 
on  his  behalf,  as  prescribed  in  this  chapter,  and  not  otherwise. 
[Amendment,  approved  April  9,  1880;  amendments  1880,  p.  27. 
In  effect  April  9,  1880.] 

In  what  cases  defendant  may  apply  for  the  order. 

1336.  When  a  material  witness  for  the  defendant  is  about 
to  leave  the  state,  or  is  so  sick  or  infirm  as  to  afford  reasonable 
grounds  for  apprehending  that  he  will  be  unable  to  attend  the 
trial,  the  defendant  may  apply  for  an  order  that  the  witness  be 
examined  conditionally. 

66  Cal.   396;   82  Cal.    463. 

Application,  how  made. 

1337.  The  application  must  be  made  upon  affidavit,  stating: 

1.  The  nature  of  the  offense  charged; 

2.  The  state  of  the  proceedings  in  the  action; 

3.  The  name  and  residence  of  the  witness,  and  that  his  tes- 
timony is  material  to  the  defense  of  the  action; 

4.  That  the  witness  is  about  to  leave  the  state,  or  Is  so  sick 
or  infirm  as  to  afford  reasonable  grounds  for  apprehending  that 
he/  will  not  be  able  to  attend  the  trial. 

82    Cal.    463. 

Application,  to  whom  made. 

1338.  The  application  may  be  made  to  the  court,  or  to  a 
judge  thereof,  and  must  be  upon  three  days  notice  to  the 
district  attorney.  [Amendment,  approved  March  12,  1880; 
amendments  1880,  p.  5.     In  effect  March  12,  1880.] 


719  EXAMINATION  OF  WITNESSES.  1339-1346 

Order,  when  granted  and  what  to  contain. 

1339.  If  the  court  or  judge  is  satisfied  that  the  examination 
of  the  witness  is  necessary,  an  order  must  be  made  that  the 
witness  be  examined  conditionally,  at  a  specified  time  and  place, 
and  that  a  copy  of  the  order  be  served  on  the  district  attorney, 
within  a  specified  time  before  that  fixed  for  the  examination. 

Examination   in   absence  of  district  attorney. 

1340.  The  order  must  direct  that  the  examination  be  taken 
before  a  magistrate  named  therein,  and  on  proof  being  fur- 
nished to  such  magistrate  of  service  upon  the  district  attorney 
of  a  copy  of  the  order,  if  no  counsel  appear  on  the  part  of  the 
people,  the  examination  must  proceed. 

If  facts  disproved,  examination  not  to  proceed. 

1341.  If  the  district  attorney  or  other  counsel  appear  on 
behalf  of  the  people,  and  it  is  shown  to  the  satisfaction  of  the 
magistrate,  by  affidavit  or  other  proof,  or  on  the  examination 
o^  the  witness,  that  he  is  not  about  to  leave  tne  state,  or  is  not 
sick  or  infirm,  or  that  the  application  was  made  to  avoid  the 
examination  of  the  witness  on  the  trial,  the  examination  cannot 
take  place;   otherwise  it  must  proceed. 

Attendance  of  witness,   how  enforced. 

1342.  The  attendance  of  the  witness  may  be  enforced  by  a 
subpoena,  issued  by  the  magistrate  before  whom  the  examination 
is  to  be  taken. 

Testimony,  how  taken  and  authenticated. 

1343.  The  testimony  given  by  the  witness  must  be  reduced 
to  writing,  and  authenticated  in  the  same  manner  as  the  tes- 
timony of  a  witness  taken  in  support  of  an  information. 

Deposition  to  be  transmitted  to  clerk. 

1344.  The  deposition  taken  must,  by  the  magistrate,  be  sealed 
up  and  transmitted  to  the  clerk  of  the  court  in  which  the  action 
is  pending  or  may  come  for  trial. 

When  may  be  read  in  evidence.     Objections,  etc. 

1345.  The  deposition,  or  a  certified  copy  thereof,  may  be  read 
In  evidence  by  either  party  on  the  trial,  upon  its  appearing  that 
the  witness  is  unable  to  attend,  by  reason  of  his  death,  insanity, 
sickness,  or  infirmity,  or  of  his  continued  absence  from  the 
state.  Upon  reading  the  deposition  in  evidence,  the  same 
objections  may  be  taken  to  a  question  or  answer  contained 
therein  as  if  the  witness  has  been  examined  orally  in  court. 

75   Cal.    303;    108   Cal.    445. 

Deposition   of   witness    imprisoned    in    another  county. 

1346.  When  a  material  witness  for  a  defendant,  under  a 
criminal  charge,  is  a  prisoner  in  the  state  prison,  or  in  the 
county  jail  of  a  county  other  than  that  in  which  the  defendant 
is  to  be  tried,  his  deposition  may  be  taken,  on  behalf  of  the 
defendant,  in  the  manner  provided  for  in  the  case  of  a  witness 
who  is  sick,  and  the  provisions  of  the  Penal  Code,  commencing 
with  section  thirteen  hundred  and  thirty-five  and  ending  with 
section  thirteen  hundred  and  forty-five,  shall,  so  far  as  applicable, 
govern  in  the  application  for  and  in  the  taking  and  use  of  such 
deposition.  Such  deposition  may  be  taken  before  any  magistrate 
or  notary  public  of  the  county  in  which  the  jail  or  prison  is 
situated;   or  in  case  the  witness  is  confined  in  the  state  prison, 


1349-1353  PENAL  CODE.  720 

and  the  defendant  is  unable  to  pay  for  taking  the  deposition, 
before  the  warden  or  clerk  of  the  board  of  directors  of  the  state 
prison,  whose  duty  it  shall  be  to  act  without  compensation.  Every 
officer,  before  whom  testimony  shall  be  taken  by  virtue  hereof, 
shall  have  authority  to  administer,  and  shall  administer,  an 
oath  to  the  witness  that  his  testimony  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth.  [Amendment,  approved 
April  9,  1880;  amendments  1880,  p.  28.     In  effect  April  9,  1880.] 

82  CaJ.    457. 

CHAPTER  V. 
EXAMINATION    OF    WITNESSES    ON    COMMISSION. 

Sec.    1349.  Examination   of   witness   residing   out   of   the   state. 

1350.  When  defendant  may  apply  for  an  order  to  examine. 

1351.  Commission  defined. 

1352.  Application   made   on   affidavit. 

1353.  Application,   to   whom   made. 

1354.  Order  for   commission,    when    granted,    stay   of   proceedings. 

1355.  Interrogations,    how    settled    and    allowed. 

1356.  Direction    as    to    the    return    of    the   commission. 

1357.  Commission,    how    executed. 

1358.  Returned  commission,   delivered  to  an  agent. 

1359.  Same. 

1360.  When    and    how    filed. 

1361.  Commission    and    return,    open    for   inspection.     Copies,    etc. 

1362.  Depositions   to   he    read    In   evidence.      Objections. 

Examination   of  witness    residing   out  of  the  state. 

1349.  When  an  issue  of  fact  is  joined  upon  an  indictment  or 
Information,  the  defendant  may  have  any  material  witness, 
residing  out  of  the  state,  examined  in  his  behalf,  as  prescribed 
in  this  chapter,  and  not  otherwise.  [Amendment,  approved 
April  9,  1880;   amendments  1880,  p.  28.     In  effect  April  9,  1880. j 

84   Cal.    26. 

When  defendant  may  apply  for  an  order  to  examine. 

1350.  When  a  material  witness  for  the  defendant  resides 
out  of  the  state,  the  defendant  may  apply  for  an  order  that  the 
witness  be  examined  on  a  commission. 

Commission   defined. 

1351.  A  commission  is  a  process  issued  under  the  seal  of 
the  court  and  the  signature  of  the  clerk,  directed  to  some  person 
designated  as  commissioner,  authorizing  him  to  examine  the 
witness  upon  oath  on  interrogatories  annexed  thereto,  to  take 
and  certify  the  deposition  of  the  witness,  and  to  return  it 
according  to  the  directions  given  with  the  commission. 

Application  made  on  affidavit. 

1352.  The  application  must  be  made  upon  affidavit,  stating: 

1.  The  nature  of  the  offense  charged; 

2.  The  state  of  the  proceedings  in  the  action,  and  that  an 
issue  of  fact  has  been  joined  therein; 

3.  The  name  of  the  witness,  and  that  his  testimony  Is 
material  to  the  defense  of  the  action; 

4.  That  the  witness  resides  out  of  the  state. 

Application,  to  whom   made. 

1353.  The  application  may  be  made  to  the  court,  or  a  Judge 
thereof,  and  must  be  upon  three  days'  notice  to  the  district 
attorney.  [Amendment,  approved  March  12,  1880;  amendments 
1880,  p.  6.    In  effect  March  12,  1880.] 


721  EXAMINATION  OF  WITNESSES.  1354-1357 

Order   for   commission,   when   granted,  stay   of   proceedings. 

1354.  If  the  court  to  whom  the  application  is  made  is  sat- 
isfied of  the  truth  of  the  facts  stated,  and  that  the  eitamination 
of  the  witness  Is  necessary  to  the  attainment  of  jusice,  an  order 
must  be  made  that  a  commission  be  issued  to  take  his  testimony; 
and  the  court  may  insert  in  the  order  a  direction  that  the  trial 
be  stayed  for  a  specified  time,  reasonably  sufficient  for  the 
execution  and  return  of  the  commission.  [Amendment,  approved 
April  9,  1880;  amendments  1880,  p.  28.     In  effect  April  9,  1880.] 

84  Cal.   26;   108  Cal.   U. 

Interrogations,  how  settled  and  allowed. 

1355.  When  the  commission  is  ordered,  the  defendant  must 
serve  upon  the  district  attorney,  without  delay,  a  copy  of  the 
interrogatories  to  be  annexed  thereto,  with  two  days'  notice  of 
the  time  at  which  they  will  be  presented  to  the.  court  or  Judge. 
The  district  attorney  may  in  like  manner  serve  upon  the  defend- 
ant or  his  counsel  cross-interrogatories,  to  be  annexed  to  the 
commission,  with  the  like  notice.  In  the  interrogatories  either 
party  may  insert  any  questions  pertinent  to  the  issue.  When 
the  interrogatories  and  cross-interrogatories  are  presented  to 
the  court  or  judge,  according  to  the  notice  given,  the  court  or 
judge  must  modify  the  questions  so  as  to  conform  them  to  the 
rules  of  evidence,  and  must  indorse  upon  them  his  allowance, 
and   annex   them   to  the   commission. 

Direction    as   to   the   return    of  the  commission. 

1356.  Unless  the  parties  otherwise  consent,  by  an  indorse- 
ment upon  the  commission,  the  court  or  judge  must  indorse 
thereon  .a  direction  as  to  the  manner  in  which  it  must  be 
returned,  and  may,  in  his  discretion,  direct  that  it  be  returned 
by  mail  or  otherwise,  addressed  to  the  clerk  of  the  court  In 
which  the  action  is  pending,  designating  his  name  and  the  place 
where  his  office  is  kept. 

Commission,   how  executed. 

1357.  The  commissioner,  unless  otherwise  specially  directed, 
may  execute  the  co'mmission  as  follows: 

First — He  must  publicly  administer  ah  oath  to  the  witness 
that  his  answers  given  to  the  interrogatories  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth. 

Second — He  must  cause  the  examination  of  the  witness  to  be 
reduced  to  writing    and  subscribed  by  him. 

Third — He  must  write  the  answers  of  the  witness  as  near  as 
possible  in  the  language  in  which  he  gives  them,  and  read  to  him 
each  answer  as  it  is  taken  down,  and  correct  or  add  to  it  until 
It  conforms  to  what  he  declares  is  the  truth. 

Fourth — If  the  witness  decline  answering  a  question,  that  fact, 
with  the  reason  assigned  by  him  for  declining,  must  be  stated. 

Fifth — If  any  papers  or  documents  are  produced  before  him 
and  proved  by  the  witness,  they,  or  copies  of  them,  must  be  an- 
nexed to  the  deposition  subscribed  by  the  witness  and  certified 
by  the  commissioner. 

Sixth — The  commissioner  must  subscribe  his  name  to  each 
sheet  of  the  deposition,  and  annex  the  deposition,  with  the  pa- 
pers and  documents  proved  by  the  witness,  or  copies  thereof,  to 
the  commission,  and  must  close  it  up  under  seal,  and  address  it 
as  directed  by  the  indorsement  thereon. 


CRIMES- -46 


1358-1362         PENAL  CODE.  722 

Seventh — If  there  be  a  direction  on  the  commission  to  return  It 
hy  mail,  the  commissioner  must  immediately  deposit  it  in  the 
nearest  post  office.  If  any  other  direction  be  made  by  the  written 
•consent  of  the  parties,  or  by  the  court  or  judge,  on  the  com- 
mission, as  to  its  return,  the  commissioner  must  comply  with 
the  direction. 

A  copy  of  this  section  must  be  annexed  to  the  commission. 
[Amendment,  approved  March  30,  1874;  amendments  1873-4,  p. 
451.    In  effect  July  1,  1874.] 

Returned  commission,  delivered  to  an  agent. 

1358.  If  the  commission  and  return  be  delivered  by  the  com- 
missioner to  an  agent,  he  must  deliver  the  same  to  the  clerk 
to  whom  it  is  directed,  or  to  the  judge  of  the  court  in  which  the 
action  is  pending,  by  whom  it  may  be  received  and  opened,  upon 
the  agent  making  affidavit  that  he  received  it  from  the  hands 
of  the  commissioner,  and  that  it  has  not  been  openea  or  altered 
since  he  received  it.  [Amendment,  approved,  April  9,  1880; 
amendments  1880,   p.  28.    In  effect  April  9,  1880.] 

Same. 

1359.  If  the  agent  is  dead,  or  from  sickness  or  other  casualty 
unable  personally  to  deliver  the  commission  and  return,  as 
prescribed  in  the  last  section,  it  may  be  received  by  the  clerk  or 
judge  from  any  other  person,  upon  his  making  an  aflBdavit  that 
he  received  it  from  the  agent;  that  the  agent  is  dead,  or  from 
sickness  or  other  casualty  unable  to  deliver  it;  that  it  has  not 
been  opened  or  altered  since  the  person  making  the  affidavit 
received  it;  and  that  he  believes  it  has  not  been  opened  or 
altered  since  it  came  from  the  hands  of  the   commissioner. 

When  and   how  filed. 

1360.  The  clerk  or  judge  receiving  and  opening  the  com- 
mission and  return  must  immediately  file  it.  with  the  affidavit 
mentioned  in  the  last  two  sections,  in  the  office  of  the  clerk 
of  the  court  in  which  the  indictment  is  pending.  If  the  com- 
mission and  return  is  transmitted  by  mail,  the  clerk  to  whom 
it  is  addressed  must  receive  it  from  the  post  office,  and  open 
and  file  it  in  his  office,  where  it  must  remain,  unless  otherwise 
directed  by  the  court  or  judge. 

Commission   and   return,  open  for  inspection.     Copies,  etc. 

1361.  The  commission  and  return  must  at  all  times  be  open 
to  the  inspection  of  the  parties,  who  must  be  furnished  by  the 
clerk  with  copies  of  the  same  or  of  any  part  thereof,  on  pay- 
ment of  his  fees. 

Depositions  to  be  read  in  evidence.     Objections. 

1362.  The  depositions  taken  under  the  commission  may  be 
read  in  evidence  by  either  party  on  the  trial,  upon  it  being 
shown  that  the  witness  is  unable  to  attend  from  any  cause 
whatever;  and  the  same  objections  may  be  taken  to  a  question  in 
the  interrogatories  or  to  an  answer  in  the  ueposition,  as  if  the 
witness  had  been  examined  orally  in  court. 


723  INQUIRY    INTO  INSANITY.  1367-1370 

CHAPTER  VI. 

INQUIRY     INTO     THE     INSANITY    OP    THE    DEFENDANT 

BEFORE   TRIAL    OR   AFTER   CONVICTION, 

Sep.    1367.  Insane   person   cannot  be   tried,   or   punished. 

1368.  Doubts  as  to  sanity  of  the  defendant,  how  determined.    Stay 

of  proceedings  on. 

136J).  Trial   of   the   question    of   Insanity.     Charge   of   the  court. 

1370.  Verdict   of   the  Jury   as   to   sanity,    and   proceedings   thereon. 

1371.  If  defendant  Is  committed,   it  exonerates  his  ball,  etc. 

1372.  Defendant  detained   in  asylum   until  he  liecoraes  sane. 

1373.  Expense  of   sending,    etc.,    defendant   to  asylum. 

Insane   person   cannot   be  tried,  or   punished. 

1367.  A  person  cannot  be  tried,  adjudged  to  punishment,  or 
punished  for  a  public  offense,  while  he  is  insane. 

105  Cal.    340;   loe  Cal.    56;   126  Cal.   616;  126  Cal. 
427;    129    Cal.    331. 

Doubts   as  to   sanity   of  the   defendant,  how  determined.     Stay 
of  proceedings  on. 

1368.  When  an  action  is  called  for  trial,  or  at  any  time  during 
the  trial,  or  when  the  defendant  is  brought  up  for  judgment  on 
conviction,  if  a  doubt  arise  as  to  the  sanity  of  the  defendant, 
the  court  must  order  the  question  as  to  his  sanity  to  be  sub- 
mitted to  a  jury;  and  the  trial  or  the  pronouncing  of  the 
judgment  must  be  suspended  until  the  question  is  determined 
by  their  verdict,  and  the  trial  jury  may  be  discharged  or 
retained,  according  to  the  discretion  of  the  court,  during  the 
pendency  of  the  issue  of  insanity.  [Amendment,  approved  April 
9,  1880;   amendments  1880,  p.  ,28.     In  effect  April  9,  1880.] 

67  Cal.  380;  85  Cal.  301;  106  Cal  51;  116  Cal. 
441;  126  Cal.  616;  126  Cal.  426;  132  Cal.  305.   " 

Trial   of  the  question   of  insanity.     Charge  of  the  court. 

1369.  The  trial  of  the  question  of  insanity  must  proceed  in 
the  following  order: 

1.  The  counsel  for  the  defendant  must  open  the  case  and 
offer  evidence  in  support  of  the  allegation  of  insanity; 

2.  The  counsel  for  the  people  may  then  open  their  case 
and  offer  evidence  in  support  thereof; 

3.  The  parties  may  then  respectively  offer  rebutting  tes- 
timony only,  unless  the  court,  for  good  reason  in  furtherance 
of  justice,  permit  them  to  offer  evidence  upon  their  original 
cause; 

4.  When  the  evidence  is  concluded,  unless  the  case  is  sub- 
mitted to  the  jury  on  either  or  both  sides  without  argument, 
the  counsel  for  the  people  must  commence,  and  the  defendant 
or  his  counsel  may  conclude  the  argument  to  the  jury; 

5.  If  the  indictment  be  for  an  offense  punishable  with  death, 
two  counsel  on  each  side  may  argue  the  cause  to  the  jury,  in 
which  case  they  must  do  so  alternately.  In  other  cases  the 
argument  may  be  restricted  to  one  counsel  on  each  side; 

6.  The  court  must  then  charge  the  jury,  stating  to  them 
all  matters  of  law  necessary  for  their  information  in  giving  their 
verdict. 

106  Cal.    340;    126  Cal.    616;    126    Cal.    426. 

Verdict  of  the  jury  as  to  sanity,  and  proceedings  thereon. 

1370.  If  the  jury  find  the  defendant  sane,  the  trial  must  pro- 
ceed, or  judgment  be  pronounced,  as  the  case  may  be.  If  the 
jury  find  the  defendant  insane,  the  trial  or  judgment  must  be 


1371-1378  PENAL  CODE.  724 

suspended  until  he  becomes  sane,  and  the  court  must  order  that 
he  be  in  the  meantime  committed  by  the  sheriff  to  the  state 
insane  asylum,  and  that  upon  his  becoming  sane  he  be  redelivered 
to  the  sheriff.  [Amendment,  approved  April  9,  1880;  amend- 
ments 1880,  p.  29.     In  effect  April  9,  1880.] 

126   Cal.    617;    129   Cal.    331. 

if  defendant  is  committed,  it  exonerates  his  bail,  etc. 

1371.  The  commitment  of  the  defendant,  as  mentioned  in  the 
last  section,  exonerates  his  bail,  or  entitles  a  person,  authorized 
to  receive  the  property  of  the  defendant,  to  a  return  of  any 
money  he  may  have  deposited  instead  of  bail. 

Defendant  detained  in  asylum  until   he  becomes  sane. 

1372.  If  the  defendant  is  received  into  the  asylum,  he  must 
be  detained  there  until  he  becomes  sane.  When  he  becomes 
sane,  the  superintendent  must  give  notice  of  that  fact  to  the 
sheriff  and  district  attorney  of  the  county.  The  sheriff  must 
thereupon,  without  delay,  bring  the  defendant  from  the  asylum, 
and  place  him  in  proper  custody  until  he  is  brought  to  trial  or 
judgment,  as  the  c&se  may  be,  or  is  legally  discharged. 

129   Cal.    331. 

Expense   of  sending,   etc.,   defendant  to  asylum. 

1373.  The  expenses  of  sending  the  defendant  to  the  asylum, 
of  keeping  him  there,  and  of  bringing  Ijim  back,  are  in  the  first 
instance  chargeable  to  the  county  in  which  the  indictment  was 
found,  or  information  filed;  but  the  county  may  recover  them 
from  the  estate  of  the  defendant,  if  he  have  any,  or  from  a 
relative,  town,  city,  or  county  bound  to  provide  for  and  main- 
tain him  elsewhere.  [Amendment,  approved  April  9,  1880; 
amendments  1880,  29.    In  effect  April  9,  1880.] 

126  Cal.    616;   129   Cal.   331. 


CHAPTER  VII. 

COMPROMISING   CERTAIN   PUBLIC    OFFENSES    BY   LEAVE 

OF  THE  COURT. 

Sec.    1377.    Compromise  of  offen.ses  for  which  civil  action  may  be  had. 

1378.  Compromise  by   permissiou  of  the  court   bars  another  pros- 

ecution. 

1379.  >i'o   public  offense   to  be   compromised   except. 

Compromise  of  offenses  for  which  civil  action  may  be  had. 

1377.  When  a  defendant  is  held  to  answer  on  a  charge  of 
misdemeanor,  for  which  the  person  injured  by  the  act  con- 
stituting the  offense  has  a  remedy  by  a  civil  action,  the  offense 
may  be  compromised  as  provided  in  the  next  section,  except 
when  it  is  committed: 

1.  By  or  upon  an  oflBcer  of  justice,  while  in  the  execution  of 
the  duties  of  his  office; 

2.  Riotously; 

3.  With  an  intent  to  commit,  a  felony. 

Compromise    by    permission    of   the    court    bars    another    pros- 
ecution. 

1378.  If  the  party  injured  appears  before  the  court  to  which 
the  depositions  are  required  to  be  returned,  at  any  time  before 
trial,  and  acknowleages  that  he  has  received  satisfaction  for  the 


725      COMPROMISING  OFFENSES — DISMISSING  ACTION.    1379-1384 

Injury,  the  court  may.  In  its  discretion,  on  payment  Oi.  the  costs 
Incurred,  order  all  proceedings  to  be  stayed  upon  the  pros- 
ecution, and  the  defendant  to  be  discharged  therefrom;  but  In 
such  case  the  reasons  for  the  order  must  be  set  forth  therein, 
and  entered  on  the  minutes.  The  order  is  a  bar  to  another  pros- 
ecution for  the  same  offense. 

No  public  offense  to  be  compromised  except. 

1379.  No  public  offense  can  be  compromised,  nor  can  any  pro- 
ceeding or  prosecution  for  the  punishment  thereof  upon  a  com- 
promise be  stayed,  except  as  provided  in  this  chapter. 


CHAPTER  VIII. 
DISMISSAL  OF  THE  ACTION  BEFORE  OR  AFTER  INDICT- 
MENT FOR  WANT  OF  PROSECUTION  OR  OTHERWISE. 

Sec.    1.SS2.  Wben   action   may   lie  dismissed. 

1383.  Continuance   and   discharge   from   custody. 

l.'?S4.  If  action   dismissed,   defendant  to  be  discharged,   etc. 

1385.  Dismissed    on    motion    of    court    or    application    of    district 

attorney. 

138G.  Nolle  prosequi   abolished. 

1387.  Dismissal   a   bar    in    misdemeanor,    but    not    In    felony. 

1388.  Probationary    treatment   of   juvenile   delinquents. 
1389..  Prohibiting   minors  to   visit  houses  of  ill  fame. 

When    action    may   be    dismissed. 

1382.  The  coiirt,  unless  good  cause  to  the  contrary  is  shown, 
must  order  the  prosecution  to  be  dismissed  in  the  following 
cases : 

1.  When  a  person  has  been  held  to  answer  for  a  public 
offense,  if  an  indictment  is  not  found  or  an  information  filed 
against  him,  within  thirty  days  thereafter. 

2.  If  a  defendant,  whose  trial  has  not  been  postponed  upon 
his  application,  is  not  brought  to  trial  within  sixty  days  after 
the  finding  of  the  indictment,  or  filing  of  the  information. 
[Amendment  approved  April  9,  1880;  amendments  1880,  29.  In 
effect  April  9,  1880.] 

54  Cal.  101;  54  Cal.  413;  63  Cal.  346;  65  Cal.  218; 
69  Cal.  540;  77  Cal.  447;  82  Cal.  109;  85  Cal.  516; 
91  Cal.  29;  99  Cal.  101;  100  Cal.  3;  113  Cal.  284; 
116  Cal.  152;  127  Cal.  373;  130  Cal.  162;  133  Cal. 
351. 

Continuance  and  discharqe  from  custody. 

1383.  If  the  defendant  is  not  charged  or  tried,  as  provided  in 
the  last  section,  and  sufiicient  reason  therefor  is  shown,  the 
court  may  order  the  action  to  be  continued  from  time  to  time, 
and  in  the  meantime  may  discharge  the  defendant  from  cus- 
tody on  his  own  undertaking  of  bail  for  his  appearance  to 
answer  the  charge  at  the  time  to  which  the  action  is  continued. 
[Amendment  approved  April  9,  1880;  amendments  1880,  29.  In 
effect  April  9,  1880.] 

54   Cal.    413. 

If  action   dismissed,   defendant  to   be   discharged,  etc. 

1384.  If  the  court  directs  the  action  to  be  dismissed,  the 
defendant  must,  if  in  custody,  be  discharged  therefrom;  or  if 
admitted  to  bail,  his  bail  is  exonerated,  or  money  deposited 
Instead  of  bail  must  be  refunded  to  him. 

54  Cal.    414. 


1385-1388         PENAL  CODE.  726 

Dismissed  on  motion  of  court  or  application  of  district  attorney. 

1385.  The  court  may,  either  of  Its  own  motion  or  upon  the 
application  of  the  district  attorney,  and  in  furtherance  of  Jus- 
tice, order  an  action  or  indictment  to  be  dismissed.  The  reasons 
of  the  dismissal  must  be  set  forth  in  an  order  entered  u^on  the 
minutes. 

48    Cal.    253;    64    Cal.    263;    71   Cal.    546;    85    Cal. 
690;   127  Cal.    64;   130  Cal.   76;   132  Cal.   16. 

Noiie  prosequi  abolished. 

1386.  The  entry  of  a  nolle  prosequi  is  abolished,  and  neither 
the  attorney  general  nor  the  district  attorney  can  discontinue 
or  abandon  a  prosecution  for  a  public  ofEense,  except  as  provided 
in  the  last  section. 

85   Cal.    590. 

Dismissal  a  bar  in  misdemeanor,  but  not  in  felony. 

1387.  An  order  for  the  dismissal  of  the  action,  as  provided 
in  this  chapter,  is  a  bar  to  any  other  prosecution  for  the  same 
offense,  if  it  is  a  misdemeanor;  but  it  is  not  a  bar  if  the  ofEense 
Is  a  felony. 

48    Cal.    253;    52   Cal.    464;    64   Cal.    263;    123    Cal. 
455;    127   Cal.    64;   130  Cal.    7^;   132  Cal.    16. 

Probationary   treatment   of  juvenile   delinquents. 

1388.  Final  judgment  may  be  suspended  on  any  conviction, 
charge,  or  prosecution  for  misdemeanor,  or  felony,  wherein  the 
judgment  of  the  court  in  which  such  proceeding  is  pending  there 
is  a  reasonable  ground  to  believe  that  such  minor  may  be 
reformed,  and  that  a  commitment  to  prison  would  work  manifest 
injury  in  the  premises.  Such  suspension  may  be  for  as  long  a 
period  as  the  circumstances  of  the  case  may  seem  to  warrant, 
and  subject  to  the  following  further  provisions:  During  the 
period  of  such  suspension,  or  of  any  extension  thereof,  the  court 
or  judge  may,  under  such  limitations  as  may  seem  advisable, 
commit  such  minor  to  the  custody  of  the  officers  or  managers  of 
any  strictly  non-sectarian  charitable  corporation  conducted  for 
the  purpose  of  reclaiming  criminal  minors.  Such  corporation, 
by  its  officers  or  managers,  may  accept  the  custody  of  such  minor 
for  a  period  of  two  months  (to  be  further  extended  by  the  court 
or  judge  should  it  be  deemed  advisable),  and  should  said  minor 
be  found  incorrigible  and  incapable  of  reformation,  he  may  be 
returned  before  the  court  for  final  judgment  for  his  misdemeanor. 
Such  charitable  corporation  shall  accept  custody  of  said  minor 
as  aforesaid  upon  the  distinct  agreement  that  it  and  its  officers 
shall  use  all  reasonable  means  to  effect  the  reformation  of  such 
minor,  and  provide  him  with  a  home  and  instruction.  No  appli- 
cation for  guardianship  of  such  minor  by  any  person,  parent, 
or  friend  shall  be  entertained  by  any  court  during  the  period  of 
such  suspension  and  custody,  save  upon  recommendation  of  the 
court  before  which  the  criminal  proceedings  are  pending  first 
obtained.  Such  court  may  further,  in  its  discretion,  direct  the 
payment  of  the  expenses  of  the  maintenance  of  such  minor  dur- 
ing such  period  of  two  months,  not  to  exceed,  in  the  aggregate, 
the  sum  of  $25  (twenty-five  dollars),  which  sum  shall  include 
board,  clothing,  transportation,  and  all  other  expenses,  to  be 
paid  by  the  county  where  such  criminal  proceeding  is  pending, 
or  direct  action  to  be  instituted  for  the  recovery  thereof  out  of 
the  estate  of  said  minor,  or  from  his  parents.    Such  court  may 


727  PROCEEDINGS  AGAINST  CORPORATIONS.       1389-1392 

also  revoke  such  order  of  suspension  at  any  time.     [Approved 
March  15,  1883.     Stats.  1883,  377.1 

71   Cal.    028;   93  Cal.    640;   113   Cal.   588. 

Prohibiting  minors  to  visit  houses  of  ill  fame. 

1389.  That  no  minors  in  the  employ  of  any  telephone  com- 
pany, special  delivery  company,  or  association,  or  any  other 
corporation,  or  person  or  persons,  engaged  in  the  delivery  of 
packages,  letters,  notes,  messages,  or  other  matter,  shall  be 
assigned  by  such  corporations,  or  person  or  persons,  to  hire  such 
minors  to  the  keepers  of  houses,  variety  theatres,  or  other  places 
of  questionable  repute,  or  to  other  persons  connected  with  such 
places  of  questionable  repute,  nor  to  permit  them  to  enter  such 
places  of  illegal  or  questionable  calling;  that  this  law  shall 
apply  alike  to  managers,  superintendents,  and  agents  of  such 
corporations,  and  to  be  enforced  against  them.  [New  section 
approved  March  15,  1887.  Stats.  1887,  119.  In  effect  March  15, 
1887.    Violation  is  by  sec.  2,  of  act  a  misdemeanor.] 


CHAPTER  IX. 
PROCEEDINGS  AGAINST  CORPORATIONS. 

Sec.    1390.  Summons   upon    information    against   corporation. 

1391.  Form    of   summons. 

1392.  When   and   how   .served. 

1393.  Examination    of   the   charge. 

1394.  Certificate  of  magistrate  and   return   of  depositions. 

1395.  Grand  j»iry  to  investigate  if  there  is  sufficient  cause. 

1396.  Appearance  and  plea. 

1397.  Fine  on  conviction,  how  collected. 

Summons  upon  information  against  corporation. 

1390.  Upon  an  information  or  presentment  against  a  cor- 
poration, the  magistrate  must  issue  a  summons,  signed  by  him, 
with  his  name  of  office,  requiring  the  corpcation  to  appear 
before  him,  at  a  specified  time  and  place,  to  answer  the  charge, 
the  time  to  be  not  less  than  ten  days  after  the  issuing  of  the 
summons. 

Form  of  summons. 

1391.  The  summons  must  be  substantially  in  the  following 
form:     County  of  [as  the  case  may  be.] 

The  people  of  the  state  of  California  to  the  [naming  the  cor- 
poration] : 

You  are  hereby  summoned  to  appear  before  me  at  [naming 
the  place],  on  [specifying  the  day  and  hour],  to  answer  a  charge 
made  against  you  upon  the  information  of  A  B  [or  the  present- 
ment of  the  grand  jury  of  the  county,  as  the  case  may  be],  for 
[designating   the    offense     generally].     Dated     at  the    city    [or 

township]  of ,  this  —  day  of ,  eighteen .    G  H, 

justice  of  the  peace,  [or  as  the  case  may  be]. 

When  and  how  served. 

1392.  The  summons  must  be  served  at  least  five  days  before 
the  day  of  appearance  fixed  therein,  by  delivering  a  copy  thereof 
and  showing  the  original  to  the  president  or  other  head  of  the 
corporation,  or  to  the  secretary,  cashier,  or  managing  agent 
thereof. 


1393-1401  PENAL  CODE.  728 

Examination  of  the  charge. 

1393.  At  the  appointed  time  in  the  summons,  the  magistrate 
must  proceed  to  investigate  the  charge  in  the  same  manner  as 
In  the  case  of  a  natural  person,  so  far  as  these  proceedings  are 
applicable. 

.Certificate   of   magistrate    and    return   of   depositions. 

1394.  After  hearing  the  proofs,  the  magistrate  must  certify 
upon  the  depositions,  either  that  there  is  or  is  not  sufficient 
cause  to  believe  the  corporation  guilty  of  the  offense  charged, 
and  must  return  the  deposition  and  certificate,  as  prescribed 
In  section  883. 

Grand  jury  to  investigate  if  there  is  sufficient  cause. 

1395.  If  the  magistrate  returns  a  certificate  that  there  Is 
sufficient  cause  to  believe  the  corporation  guilty  of  tne  offense 
charged,  the  grand  jury  may  proceed,  or  the  district  attorney 
file  an  information  thereon,  as  in  case  of  a  natural  person  held 
to  answer.  [Amendment  approved  April  9,  1880;  amendments 
1880,   29.    In  effect  April  9,   1880.] 

Appearance   and    plea. 

1396.  If  an  indictment  is  found,  or  information  filed,  the  cor- 
poration may  appear  by  counsel  to  answer  the  same.  If  it  does 
not  thus  appear,  a  plea 'of  not  guilty  must  be  centered,  and  the 
same  proceedings  had  thereon  as  in  other  cases.  [Amendment 
approved  April  9,  1880;  amendments  1880,  29.  In  effect  April 
9,  1880.] 

Fine   on   conviction,   how  collected. 

1397.  When  a  fine  is  imposed  upon  a  corporation  on  con- 
viction, it  may  be  collected  by  virtue  of  the  order  imposing  It, 
by  the  sheriff  of  the  county,  out  of  its  real  and  personal  prop- 
erty, in  the  same  manner  as  upon  an  execution  in  a  civil  action. 


CHAPTER  X. 

ENTITLING  AFFIDAVITS. 

€ec.    1401.    Affidavits  defectively  entitled,  valid. 

Affidavits    defectively    entitled,    valid. 

1401.  It  is  not  necessary  to  entitle  an  affidavit  or  deposition 
in  the  action,  whether  taken  before  or  after  indictment  or 
information,  or  upon  an  appeal;  but  if  made  without  a  title, 
or  with  an  erroneous  title,  it  is  as  valid  and  effectual  for  every 
purpose  as  if  it  were  duly  entitled,  if  it  intelligibly  refer  to  the 
proceeding,  indictment,  information,  or  appeal  in  which  it  Is 
made.  [Amendment  approved  April  9,  1880;  amendments  1880, 
30.    In  effect  April  9,  1880.] 


729  ERRORS — DISPOSAL  OF  STOLEN  PROPERTY.         1404-1410 

CHAPTER  XI. 
ERRORS  AND  MISTAKES  IN  PLEADINGS  AND  OTHER  PRO- 
CEEDINGS. 
Sec.    1404.    When   not   material. 

When  not  material. 

1404.  Neither  a  departure  from  the  form  or  mode  prescribed 
by  this  code  in  respect  to  any  pleading  or  proceeding,  nor  an 
error  or  mistalte  therein,  renders  it  invalid,  unless  it  has  actually 
prejudiced  the  defendant,  or  tended  to  his  prejudice,  in  respect 
to  a  substantial  right. 

49  Cal.  390:  53  Cal.  4M;  57  Cal.  90;  57  Cal.  98; 
59  Cal.  as4:  62  Cal.  520;  64  Cal.  21»:  64  Cal.  372; 
64  Cal.  42G;  67  Cal.  56:  9S  Cal.  5S3;  94  Cal.  119; 
96  Cal.  319:  102  Cal.  242;  115  Cal.  306;  116  Cal. 
198;  120  Cal.  663;  133  Cal.  124. 

CHAPTER  XII. 

DISPOSAL   OF   PROPERTY    STOLEN   OR  EMBEZZLED. 

Sec.    1407.  Peace   officer    must    hold    property    subject   to   the   order   of 
magistrate. 

1408.  Order   for   Its  delivery   to  owner. 

1409.  Magistrate   must    deliver   It   to   owner. 

1410.  Court  in   which    trial   Is   had    may    order   Its   delivery. 

1411.  Delivered   to  county   treasurer  if  not  claimed  In  six  months. 

1412.  Receipt  for  money,   etc.,  taken  from   person  arrested. 

1413.  Record   of  property   alleged   to  be   stolen. 

Peace     officer     must     hold     property     subject    to    the    order   of 
magistrate. 

1407.  When  property,  alleged  to  have  been  stolen  or  em- 
bezzled, comes  into  the  custody  of  a  peace  officer,  he  must  hold 
It  subject  to  the  order  of  the  magistrate  authorized  by  the  next 
section  to  direct  the  disposal  thereof. 

Order  for  its  delivery  to  owner. 

1408.  On  satisfactory  proof  of  the  ownership  of  the  property, 
the  magistrate  before  whom  the  information  is  laid,  or  who 
examines  the  charge  against  the  person  accused  of  stealing  or 
embezzling  it,  must  order  it  to  be  delivered  to  the  owner,  on  his 
paying  the  necessary  expenses  incurred  in  its  preservation,  to  be 
certified  by  the  magistrate.  The  order  entitles  the  owner  to 
demand  and  receive  the  property. 

Magistrate   must  deliver   it  to  owner. 

1409.  If  property  stolen  or  embezzled  comes  into  custody  of 
the  magistrate,  it  must  be  delivered  to  the  owner  on  satisfactory 
proof  of  his  title,  and  on  his  paying  the  necessary  expenses 
incurred  in  its  preservation,  to  be  certified  by  the  magistrate. 

Court  in  which  trial   is  had  may  order  its  delivery. 

1410.  If  the  property  stolen  or  embezzled  has  not  been 
delivered  to  the  owner,  the  court  before  which  a  trial  is  had  for 
stealing  or  embezzling  it  may,  on  proof  of  his  title,  order  it  to  be 
restored  to  the  owner. 


1411-1418  PENAL  CODE.  730 

Delivered  to  county  treasurer  if  not  claimed   in  six  months. 

1411.  If  the  property  stolen  or  embezzled  is  not  claimed  by 
the  owner  before  the  expiration  of  six  months  from  the  con- 
viction of  a  person  for  stealing  or  embezzling  it.  the  magistrate 
or  other  officer  having  it  in  custody  must,  on  the  payment  of 
the  necessary  expenses  incurred  in  its  preservation,  deliver  it  to 
the  county  treasurer,  by  whom  it  must  be  sold  and  the  proceeds 
paid  into  the  county  treasury. 

Receipt  for  money,  etc.,  taken  from   person   arrested. 

1412.  When  money  or  other  property  is  taken  from  a  defend- 
ant, arrested  upon  a  chargfe  of  a  public  offense,  tue  officer  taking 
It  must  at  the  time  give  duplicate  receipts  therefor,  specifying 
particularly  the  amount  of  money  or  the  kind  of  property  taken; 
one  of  which  receipts  he  must  deliver  to  the  defendant  and  the 
other  of  which  he  must  forthwith  file  with  the  clerk  of  the  court 
to  v/hich  the  depositions  and  statement  are  to  be  sent.  When 
such  property  is  taken  by  a  police  officer  of  any  incorporated 
city  or  town,  he  must  deliver  one  of  the  receipts  to  the  defend- 
ant, and  one,  with  the  property,  at  once  to  the  clerk  or  other 
person  in  charge  of  the  police  office  in  such  city  or  town. 

Record  of  property  alleged  to  be  stolen. 

1413.  The  clerk  in,  or  person  having  charge  of,  the  police 
office  in  any  incorporated  city  or  town,  must  enter  in  a  suitable 
book  a  description  of  every  article  of  property  alleged  to  be 
stolen  or  embezzled,  and  brought  into  the  office  or  taken  from 
the  person  of  a  prisoner,  and  must  attach  a  number  to  each 
article,  and  make  a  corresponding  entry  thereof. 


CHAPTER  XIII. 
REPRIEVES,    COMMUTATIONS    AND    PARDONS. 

Bee.    1417.    Governor  may   grant  reprieves,   commutations,   and   pardons. 

1418.  His  power   in   respect   to  convictions  for   treason. 

1419.  To  communicate  to  the  legislature  reprieves,   commutations, 

and  pardons. 

1420.  Report  of  case,   how  and   from  whom  required. 

1421.  Notice  to  district  attorney  of  application  for  pardon. 

1422.  Publication   of   notice. 

1423.  When    two    preceding    sections   are   not    applicable. 

Governor  may  grant  reprieves,  commutations,  and   pardons. 

1417.  The  governor  has  power  to  grant  reprieves,  commu- 
tations, and  pardons,  after  conviction,  for  all  offenses,  except 
treason  and  cases  of  impeachment,  upon  such  conditions  and 
with  such  restrictions  and  limitations  as  he  may  think  proper, 
subject  to  the  regulations  provided  in  this  chapter. 

68    Cal.    180. 

His  power  In  respect  to  convictions  for  treason. 

1418.  He  may  suspend  the  execution  of  the  sentence,  upon 
a  conviction  for  treason,  until  the  case  can  be  reported  to  the 
legislature  at  its  next  meeting,  when  the  legislature  may  either 
pardon,  direct  the  execution  of  the  sentence,  or  grant  a  further 
reprieve;  provided,  that  neither  the  governor  nor  the  legislature 
shall  have  power  to  grant  pardons  or  commutations  of  sen- 
tence in  any  case  where  the  convict  has  been  twice  convicted  of 
felony,   after   the   first   day   of   January,   eighteen   hundred   and 


731         REPRIEVES,  COMMUTATIONS  AND  PARDONS.  1419-1423 

eighty,  unless  upon  the  written  recommendation  of  a  majority 
of  the  judges  of  the  Supreme  Court,  f  Amendment  approved 
February  18,  1880;  amendments  1880,  2.  In  effect  February  18, 
1880.] 

6S    Cal.    180. 

To  communicate  to  the  legislature  reprieves,  commutations,  and 
pardons. 

1419.  He  must,  at  the  beginning  of  every  session,  com- 
municate to  the  legislature  each»«case  of  reprieve,  commutation, 
or  pardon,  stating  the  name  of  the  convict,  the  crime  of  which 
he  was  convicted,  the  sentence  and  its  date,  and  the  date  of 
the  commutation,  pardon,  or  reprieve,  and  the  reasons  for  grant- 
ing the  same.  [Amendment  approved  February  18,  1880;  amend- 
ments 1880,  3.     In  effect  February  18,  1880.] 

Report  of  case,  how  and  from  whom   required. 

1420.  When  an  application  is  made  to  the  governor  for  a 
pardon,  he  may  require  the  judge  of  the  court  before  which  the 
conviction  was  had,  or  the  district  attormey  by  whom  the  action 
was  prosecuted,  to  furnish  him,  without  delay,  with  a  statement 
of  the  facts  proved  on  the  irial,  and  of  any  other  facts  having 
reference  to  the  propriety  of  granting  or  refusing  the  pardon. 

68    Cal.    180. 

Notice  to  district  attorney   of  application   for   pardon. 

1421.  At  least  ten  days  before  the  governor  acts  upon  an 
application  for  a  pardon,  written  notice  of  the  intention  to  apply 
therefor,  signed  by  the  person  applying,  must  be  served  upon  the 
district  attorney  of  the  county  where  the  conviction  was  had, 
and  proof,  by  affidavit,  of  the  service  must  be  presented  to  the 
governor. 

Publication  of  notice. 

1422.  Unless  dispensed  with  by  the  governor,  a  copy  of  the 
notice  must  also  be  published  for  thirty  days  from  the  first  pub- 
lication, in  a  paper  in  the  county  in  which  the  conviction  was 
had. 

When  two  preceding  sections  are  not  applicable. 

1423.  The  provisions  of  the  two  preceding  sections  are  not 
applicable: 

1.  When  there  is  imminent  danger  of  the  death  of  the  person 
convicted  or  imprisoned; 

2.  When  the  term  of  imprisonment  of  the  applicant  is  within 
ten  days  of  its  expiration. 


1426-1427         PENAL  CODE.  732 

TITLE  XI. 

OF  PROCEEDINGS  IN  JUSTICES'  AND  POLICE  COURTS,  AND 

APPEALS    TO    SUPERIOR    COURTS. 

Chapter  I.    Proceedings  in  justices'  and  police  courts,  sections 
1426-61. 
II.     Appeals  to   superior   courts,   sections   1466-70. 

CHAPTER  I. 
PROCEEDINGS    IN   JUSTICES'    AND   POLICE   COURTS. 

Bee.    1426.  I'roocediugs  must  be  commenced  by  complaint. 

1427.  When  warrant  of  arrest  must  issue.     Form  of  warrant. 

1428.  Minutes,  bow  kept. 

1429.  The   plea,   and   how  put  In. 

1430.  Issue,  how  tried. 

1431.  f'hange  of  venue,   when  granted. 

1432.  Proceedings  on  change  of  venue. 

1433.  I'ostponenicnt  of  the  trial. 

1434.  Defendant  to  be  present. 

1435.  Jury   trial,  how   waived. 

1436.  Challenges. 

1437.  Oath  of  Jurors. 

1438.  Trial,  how  conducted. 

1439.  Court  to  decide  questions  of  law,  but  not  of  fact. 

1440.  Jury  may  decide  In  court,   or  retire. 

1441.  Verdict  of  jury,   how  delivered  and  entered. 

1442.  "Verdict,   when  several  defendants  are  tried  together. 

1443.  Jury,    when   to   be   discharged   without   a   verdict. 

1444.  If   discharged,    defendant   may    be   tried   again. 

1445.  Proceedings  on  plea  of  guilty,  or  on  conviction. 

1446.  Judgment  of,  lino   may  direct  imprisonntent. 

1447.  Defendant,    on    acquittal,    to   be   discharged.      Costs. 

1448.  Judgment   against   prosecutor   for   costs. 

1449.  Judgment,  when  to  be  rendered. 

1450.  Motion   for   a   new   trial,    or   in   arrest  of   Judgment. 

1451.  New  trial,   grounds  of. 

1452.  Grounds  of  motion   in   arrest   of  judgment. 

1453.  Judgment  to  be  entered  In  the  minutes. 

1454.  Discharge    of    defendant    on   judgment    of   acquittal   or    fine 

only. 

1455.  Judgment  of   imprisonment,   how   executed. 

1456.  Judgment  of  imprisonment  until  fine  is  paid,  how  executed. 

1457.  Fines,   disposition  of. 

1458.  Defendant  may  bci  admitted  to  ball. 

1459.  Subpoenas. 

1460.  Entitling   affidavits. 

1461.  "Police   courts"    defined. 

Proceedings  must  be  commenced   by  complaint. 

1426.  All  proceedings  and  actions  before  a  justices'  or  police 
court,  for  a  public  offense  of  which  such  courts  have  jurisdiction, 
must  be  commenced  by  complaint  under  oath,  setting  forth  the 
offense  charged,  with  such  particulars  of  time,  place,  person, 
and  property  as  to  enable  the  defendant  to  understand  dis- 
tinctly the  character  of  the  offense  complained  of,  and  to 
answer  the  complaint. 

B4  Cal.   409:  66  Cal.   228:  60  Cal.  105;  65  Cal.  615; 
106  Cal.   407;   109  Cal.    450. 

Wlien  warrant  of  arrest  must  issue.     Form  of  warrant. 

1427.  If  the  justice  of  the  peace,  or  police  justice,  is  satisfied 
therefrom  that  the  offense  complained  of  has  been  committed, 
he  must  issue  a  warrant  of  arrest,  which  must  be  substantially 
In  the  following  form: 


733  PROCEEDINGS  IN  JUSTICE'S  COURTS.  14281 431 


County  of 


The  people  of  the  state  of  California  to  any  sheriff,  constable, 
marshal,   or   policeman    in   this   state: 

Complaint  upon  oath  having  been  this  day  made  before  me 

,  [justice  of  the  peace  or  police  justice,  as  the  case  may 

be]  by  C  D,  that  the  offense  of  [designating  it  generally]  has 
been  committed,  and  accusing  E  F  thereof;  you  are  therefore 
commanded  forthwith  to  arrest  the  above  named  E  F  and  bring 
him  before  me  forthwith,  at  [naming  the  place]. 

Witness  my  hand  and  seal  at  ,  this  —  day  of  , 

A.  D.  .  A  B. 

Minutes,    how   kept. 

1428.  A  docket  must  be  kept  by  the  Justice  of  the  peace  or 
police  justice,  or  by  the  clerk  of  the  courts  held  by  them,  1^ 
there  is  one,  in  which  must  be  entered  each  action  and  the 
proceedings  of  the  court  therein. 

Sis  Cal.    228;    94   Cal.    499. 

The  plea,  and  how  put  in. 

1429.  The  defendant  may  make  the  same  plea  as  upon  an 
Indictment,  as  provided  in  section  ten  hundred  and  sixteen.  His 
plea  must  be  oral,  and  entered  in  the  minutes.  If  r.tie  defend- 
ant plead  guilty,  the  court  may,  before  entering  such  plea  or 
pronouncing  judgment,  examine  witnesses  to  ascertain  the  grav- 
ity of  the  offense  committed;  and  if  it  appear  to  the  court  that 
a  higher  offense  has  been  committed  than  the  offense  charged 
in  the  complaint,  the  court  may  order  the  defendant  to  be  com- 
mitted or  admitted  to  bail,  to  answer  any  indictment  which  may 
be  found  against  him  by  the  grand  jury,  or  any  information 
which  may  be  filed  by  the  district  attorney.  [Amendment  ap- 
proved April  9,  1880;  amendments  1880,  30.  In  effect  April  9, 
1880.] 

60   Cal.    105. 

Issue,   how  tried. 

1430.  Upon  a  plea  other  thdn  a  plea  of  guilty,  if  the  parties 
waive  a  trial  by  jury,  and  an  adjournment  or  change  of  venue 
Is  not  granted,  the  court  must  proceed  to  try  the  case.  [Amend- 
ment approved  February  25,  1880;  amendments  1880,  5.  In 
effect  February  25,  1880.] 

92    Cal.    576.  • 

Change  of  venue,  when  granted. 

1431.  If  the  action  or  proceeding  is  in  a  justice's  court,  a 
change  of  the  place  of  trial  may  be  had  at  any  time  before  the 
trial  commences: 

1.  When  it  appears  from  the  affidavit  of  the  defendant  that  he 
has  reason  to  believe,  and  does  believe,  that  he  cannot  have  a 
fair  and  impartial  trial  before  the  justice  about  to  try  the  case, 
by  reason  of  the  prejudice  or  bias  of  such  justice,  the  cause 
must  be  transferred  to  another  justice  of  the  same  or  an  adjoin- 
ing township; 

2.  When  it  appears  from  affidavits  that  the  defendant  cannot 
have  a  fair  and  impartial  trial,  by  reason  of  the  prejudice  of 
the  citizens  of  the  township,  the  cause  must  be  transferred  to  a 
justice  of  a  township  where  the  same  prejudice  does  not 
exist. 

85  Cal.   602;   119  Cal.   402.  .  _     . 


1432-1440  PENAL  CODE.  784 

Proceedings  on  change  of  venue. 

1432.  When  a  change  of  the  place  of  trial  is  ordered,  the 
Justice  must  transmit  to  the  justice  before  whom  the  trial  i:3 
to  be  had  all  the  original  papers  in  the  cause,  with  a  certified 
copy  of  the  minutes  of  his  proceedings;  and  upon  receipt  thereof, 
the  justice  to  whom  they  are  delivered  must  proceed  with  the 
trial  In  the  same  manner  as  if  the  proceeding  or  action  had  been 
originally  commenced  in  his  court. 

Postponement  of  the  trial. 

1433.  Before  the  commencement  of  a  trial  in  any  of  the  courts 
mentioned  in  this  chapter,  either  party  may,  upon  good  cause 
shown,  have  a  reasonable  postponement  thereof. 

66   Cal.    396. 

Defendant  to  be  present. 

1434.  The  defendant  must  be  personally  present  before  the 
trial  can  proceed. 

Jury  trial,  how  waived. 

1435.  A  trial  by  jury  may  be  waived  by  the  consent  of  both 
parties  expressed  in  open  court  and  entered  in  the  docket.  The 
formation  of  the  jury  is  provided  for  in  chapter  one,  title  three, 
part  one,  of  the  Code  of  Civil  Procedure.  [Amendment  approved 
February  25,  1880;  amendments  1880,  5.  In  effect  February  25, 
1880.] 

92  Cal.   S76. 

Challenges. 

1436.  The  same  challenges  may  be  taken  by  either  party  to 
the  panel  of  jurors,  or  to  any  individual  juror,  as  on  the  trial 
of  an  indictment  for  a  misdemeanor;  but  the  challenge  must 
in  all  cases  be  tried  by  the  court. 

Oath  of  jurors. 

1437.  The  court  must  administer  to  the  jury  the  following 
oath:  "You  do  swear  that  you  will  well  and  truly  try  this  issue 
between  the  people  of  the  State  of  California  and  A  B,  the 
defendant,  and  a  true  verdict  render  according  to  the  evidence." 

Trial,  how  conducted. 

1438.  After  the  jury  are  sworn,  they  must  sit  together  and 
hear  the  proofs  and  allegations  of  the  parties,  which  must  be 
delivered  in  public    and  in  the  presence  of  the  defendant. 

Court  to  decide  questions  of  law,  but  not  of  fact. 

1439.  The  court  must  decide  all  questions  of  law  which  may 
arise  in  the  course  of  the  trial,  but  can  give  no  charge  with 
respect  to  matters  of  fact. 

Jury  may  decide  in  court,  or  retire. 

1440.  After  hearing  the  proofs  and  allegations,  the  jury  may 
decide  in  court,  or  may  retire  for  consideration.  If  they  do  not 
Immediately  agree,  an  ofRcer  must  be  sworn  to  the  following 
effect:  "You  do  swear  that  you  will  keep  this  jury  together  in 
some  quiet  and  convenient  place;  that  you  will  not  permit  any 
person  to  speak  to  them,  nor  speak  to  them  yourself,  unless  L.y 
order  of  the  court,  or  to  ask  them  whether  they  have  agreed 
upon  a  verdict;  and  that  you  will  return  them  into  court  when 
they  have  eo  agreed,  or  when  ordered  by  the  court." 


735  PROCEEDINGS  IN  JUSTICE'S  COURTS.  1441-1449 

Verdict  of  jury,   how  delivered   and   entered. 

1441.  The  verdict  of  the  jury  must  in  all  cases  be  general. 
When  the  jury  have  agreed  on  their  verdict,  they  must  deliver 
It  publicly  to  the  court,  who  must  enter,  or  cause  it  to  be 
entered,  in  the  minutes. 

Verdict,  when  several  defendants  are  tried  together. 

1442.  When  several  defendants  are  tried  together,  if  the  Jury, 
cannot  agree  upon  a  verdict  as  to  all,  they  may  render  a  verdict 
as  to  those  in  regard  to  whom  they  do  agree,  on  which  a  judg- 
ment must  be  entered  accordingly,  and  the  case  as  to  the  rest 
may  be  tried  by  another  jury. 

Jury,  when  to  be  discharged  without  a  verdict. 

1443.  The  jury  cannot  be  discharged  after  the  cause  is  sub- 
mitted to  them,  until  they  have  agreed  upon  and  rendered  their 
verdict,  unless  for  good  cause  the  court  sooner  discharges  them. 

If  discharged,  defendant  may  be  tried  again. 

1444.  If  the  jury  is  discharged,  as  provided  in  the  last  sec- 
tion, the  court  may  proceed  again  to  the  trial,  in  the  same 
manner  as  upon  the  first  trial,  and  so  on,  until  a  verdict  Is  ren- 
dered. 

Proceedings  on  plea  of  guilty,  or  on  conviction. 

1445.  When  the  defendant  pleads  guilty,  or  is  convicted, 
either  by  the  court,  or  by  a  jury,  the  court  must  render  judg- 
ment thereon  of  fine  or  imprisonment,  or  both,  as  the  case  may 
be.  [Amendment  approved  March  30,  1874;  amendments  1873-4, 
453.    In  efEect  July  1,  1874.] 

60  Cal.    4.^5. 

Judgment  of  fine  may  direct  imprisonment. 

1446.  A  judgment  that  the  defendant  pay  a  fine  may  also 
direct  that  he  be  imprisoned  until  the  fine  be  satisfied,  in  the 
proportion  of  one  day's  imprisonment  for  every  dollar  of  the 
fine.  [Amendment  approved  March  7,  1874;  amendments  1873-4, 
455.     In  effect  in  60  days.] 

60  Cal.  434;  63  Cal.  300;  65  Cal.  156;  73  Cal.  495; 
80  Cal.  203;  82  Cal.  455;  84  Cal.  166;  85  Cal.  38; 
88  Cal.  626;  89  Cal.  473;  96  Cal.  364;  97  Cal.  528. 

Defendant,  on  acquittal,  to  be  discharged.     Costs. 

1447.  When  the  defendant  is  acquitted,  either  by  the  court 
or  by  the  jury,  he  must  be  immediately  discharged;  and  If  the 
court  certify  in  the  minutes  that  the  prosecution  was  malicious 
or  without  probable  cause,  it  may  order  the  prosecutor  to  pay 
the  costs  of  the  action,  or  to  give  satisfactory  security  by  a 
written  undertaking,  with  one  or  more  sureties,  to  pay  the  same 
within  thirty  days  after  the  trial. 

Judgment  against  prosecutor  for  costs. 

1448.  If  the  prosecutor  does  not  pay  the  costs,  or  give  security 
therefor,  the  court  may  enter  judgment  against  him  for  the 
amount  thereof,  which  may  be  enforced  in  all  respects  in  the 
same  manner  as  a  judgment  rendered  in  a  civil  action. 

Judgment,  when  to  be  rendered. 

1449.  After  a  plea  or  verdict  of  guilty,  or  after  a  verdict 
against  the  defendant,  on  a  plea  of  a  former  conviction  or 
acquittal,  the  court  must  appoint  a  time  for  rendering  judgment, 


1450-1455  PENAL  CODE.  736 

which  must  not  be  more  than  two  days  nor  less  than  six  hours 
after  the  verdict  is  rendered,  unless  the  defendant  waive  the 
postponement.  If  postponed,  the  court  may  hold  the  defendant 
to  bail  to  appear  for  judgment.  [Amendment  approved  March 
30.  1874;  amendments  1873-4,  454.     In  effect  July  1,  1874.] 

C2  Cal.   533;   63  Cal.   491. 

Motion  for  a  new  trial,  or  in  arrest  of  judgment. 

1450.  At  any  time  before  judgment,  defendant  may  move  for 
a  new  trial  or  in  arrest  of  judgment. 

New  trial,  grounds  of. 

1451.  A  new  trial  may  be  granted  In  the  following  cases: 

1.  When  the  trial  has  been  had  in  the  absence  of  the  defend- 
ant, unless  he  voluntarily  absent  himself,  with  full  knowledge 
that  a  trial  Is  being  had; 

2.  When  the  jury  has  received  any  evidence  out  of  court; 

3.  When  the  jury  has  separated  without  leave  of  the  court, 
after  having  retired  to  deliberate  upon  their  verdict,  or  been 
guilty  of  any  misconduct  tending  to  prevent  a  fair  and  due 
consideration  of  the  case; 

4.  When  the  verdict  has  been  decided  by  lot,  or  by  any  means 
other  than  a  fair  expression  of  opinion  on  the  part  of  all  the 
jurors; 

5.  When  there  has  been  error  in  the  decision  of  the  court, 
given  on  any  question  of  law  arising  during  the  course  of  the 
trial; 

6.  When  the  verdict  is  contrary  to  law  or, evidence; 

7.  When  new  evidence  is  discovered  material  to  the  defend- 
ant, and  which  he  could  not,  with  reasonable  diligence,  have 
discovered  and  produced  at  the  trial;  but  when  a  motion  for  a 
new  trial  is  made  upon  this  ground,  the  defendant  must  produce 
at  the  hearing  the  affidavits  of  the  witnesses  by  whom  such 
newly  discovered  evidence  is  expected  to  be  given. 

Grounds    of    motion    in    arrest    of   judgment. 

1452.  The  motion  in  arrest  of  judgment  may  be  founded  on 
any  substantial  defect  in  the  complaint,  and  the  effect  of  an 
arrest  of  judgment  is  to  place  the  defendant  in  the  same  situation 
in  which  he  was  before  the  trial  was  had. 

Judgment  to  be  entered  In  the  minutes. 

1453.  If  the  judgment  is  not  arrested,  or  a  new  trial  granted, 
judgment  must  be  pronounced  at  the  time  appointed  and 
entered  in  the  minutes  of  the  court. 

Discharge  of  defendant  on  judgment  of  acquittal  or  fine  only. 

1454.  If  judgment  of  acquittal  is  given,  or  judgment  imposing 
a  fine  only,  without  imprisonment  for  non-payment,  and  the 
defendant  is  not  detained  for  any  other  legal  cause,  he  must  be 
discharged  as  soon  as  the  judgment  is  given. 

Judgment  of  imprisonment,  how  executed. 

1455.  When  a  judgment  of  imprisonment  is  entered,  a  certified 
copy  thereof  must  be  delivered  to  the  sheriff,  marshal,  or  other 
officer,  which  is  a  sufficient  warrant  for  its  execution. 


737  PROCEEDINGS — APPEALS.  1456-1466 

Judgment  of  imprisonment  until  fine  is  paid,  how  executed. 

1456.  When  a  judgment  is  entered  imposing  a  fine,  or  order- 
ing the  defendant  to  be  imprisoned  until  the  fine  Is  paid,  he 
must  be  held  in  custody  during  the  time  specified  in  the  judg- 
ment, unless  the  fine  is  sooner  paid. 

54   Cal.    206;   64   Cal.    438;   82  Cal.    455. 

Fines,  disposition  of. 

1457.  Upon  payment  of  the  fine,  the  officer  must  discharge  the 
defendant,  if  he  is  not  detained  for  any  other  legal  cause,  and 
pay  over  the  fine  within  ten  days  to  the  county  or  city  treasurer, 
according  as  the  offense  is  prosecuted  for  the  violation  of  a 
state  law  or  a  city  ordinance,  whether  in  the  justice's  court  or 
police  court;  provided,  that  all  forfeitures  and  fines  collected 
for  the  violation  of  any  city  ordinance,  whether  in  the  police 
court  or  justice's  court,  shall  be  paid  over  to  the  city  treasurer 
of  the  city  in  which  such  ordinance  is  in  force.  If  a  fine  Is 
imposed,  and  paid  before  commitment,  it  must  be  paid  over  as 
prescribed  in  this  section.  [In  effect  Feb.  28,  1901;  Stats.  1901, 
p.  88.] 

65  Cal.   478;   88  Cal.   411. 

Defendant  may  be  admitted  to  bail. 

1458.  The  defendant,  at  any  time  after  his  arrest,  and  before 
conviction,  may  be  admitted  to  bail.  The  provisions  of  this 
code  relative  to  bail  are  applicable  to  bail  in  justices'  or  police 
courts. 

Subpoenas. 

1459.  The  justice  or  judge  of  either  of  the  courts  mentioned 
in  this  chapter  may  issue  subpoenas  for  witnesses,  as  provided 
in  section  1326,  and  punish  disobedience  thereof,  as  provided  In 
section  1331. 

Entitling   affidavits. 

1460.  The  provisions  of  section  1401,  in  respect  to  entitling 
affidavits,  are  applicable  to  proceedings  in  the  courts  men- 
tioned in  this  chapter. 

"Police  courts"  defined. 

1461.  The  term  "police  courts,"  as  used  in  this  and  the  suc- 
ceeding chapter,  includes  police  judges'  courts,  police  courts, 
and  all  courts  held  by  mayors  or  recorders  in  incorporated  cities 
or  towns. 

66  Cal.   5;  88  Cal.   410 

CHAPTER  II. 

APPEALS  TO  SUPERIOR  COURTS, 

Sec.    1466.  Appeals,   when  allowed. 

146t.  Appeals,   how   taken,   heard,   and  determined. 

1468.  Statement  on  appeal. 

1469.  If  new  trial  granted,  in  what  court  had. 

1470.  Proceedings,  if  appeal  is  dismissed  or  judgment  affirmed. 

Appeals,  when  allowed. 

1466.  Either  party  may  appeal  to  the  Superior  Court  of  the 
county  from  a  judgment  of  a  justice's  or  police  court.  In  like 
cases  and  for  like  cause  as  appeals  may  be  taken  to  the  Supreme 
Court.  [Amendment  approved  April  12,  1880;  amendments  1880, 
34.     In  effect  April  12,  1880,] 

66  Cal.   401;    82  Cal.    615;    92  Cal,   574. 
CRIMES--47 


1467-1470  PENAL  CODE.  738 

^Appeals,  how  taken,  heard  and  determined. 

1467.  The  appeal  is  taken,  heard,  and  determined  as  pro- 
vided in  title  IX,  part  II  of  this  code. 

72  Cal.   16;  82  Cal.   615. 

-Statement   on    appeal. 

1468.  The  appeal  to  the  Superior  Court  from  the  judgment 
x>t  a  justice's  or  police  court  is  heard  upon  a  statement  of  the 
case  settled  by  the  justice  or  police  judge,  embodying  such 
rulings  of  the  court  as  are  excepted  to,  which  statement  must  be 
filed  with  and  settled  by  the  court  within  ten  days  after  filing 
notice  of  appeal.  [Amendment  approved  April  12,  1880;  amend- 
ments 1880,  35.     In  effect  April  12,  1880.] 

If  new  trial  granted,  in  what  court  had. 

1469.  If  a  new  trial  is  granted  upon  appeal,  it  must  be  had 
in  the  Superior  Court.  [Amendment  approved  April  12,  1880; 
amendments  1880,  35.    In  effect  April  12th,  1880.] 

72  Cal.   15;   92  Cal.   576. 

Proceedings,    if   appeal    is    dismissed    or   judgment    affirmed. 

1470.  If  the  appeal  is  dismissed  or  the  judgment  affirmed, 
a  copy  of  the  order  of  dismissal  or  judgment  of  aflSrmance  must 
be  remitted  to  the  court  below,  which  may  proceed  to  enforce 
Its  sentence. 

54  Cal.  345;   101  Cal.  304. 


739  WRIT  OF  HABEAS  CORPUS.  1473-1474 

TITLE  XII. 
OF  SPECIAL  PROCEEDINGS  OF  A  CRIMINAL  NATURE. 

Chapter  I.     Of  the  writ  of  habeas  corpus,  sections  1473-1505. 

II.    Of   coroneps'   inquests  and   duties  of  coroners,  sec- 
tions 1510-19. 

III.  Of  search-warrants,  sections  1523-42. 

IV.  Proceedings  against  fugitives  from  justice,  sections 

1547-58. 
v.    Miscellaneous    provisions    respecting    special     pro- 
ceedings of  a  criminal  nature,  sections  1562-4. 

CHAPTER  I. 
OF  THE  WRIT  OF  HABEAS  CORPUS. 

Sec.    1473.  Who  may  prosecute   writ. 

1474.  Application  for,  how  made. 

1475.  By    whom   issued,   and   before   whom   returnable. 
147C.  Writ   must  be  granted  without  delay. 

1477.  Writ,   what  to  contain. 

1478.  How   served. 

1479.  Proceedings  upon  disobedience  to  the  writ. 

1480.  Return,    what   to  contain. 

1481.  Body  must   be  produced,   when. 

1482.  Hearing   without   production   of  the  body. 

1483.  Hearing  on  return. 

1484.  Proceedings  on  the  hearing. 

1485.  When   court  may   discharge  the  party. 

1486.  When    to   remand   party. 

1487.  Grounds  of  discharge  in  certain  cases. 

1488.  Not  to  be  discharged  for  defect  of  form  In  warrant. 

1489.  Proceedings  on   defective   warrant. 

1490.  Writ  for  purposes  of  bail.  i 

1491.  Judge    may    take   bail. 

1492.  Judge,    when   to  remand. 

1493.  Person  in  illegal,   may  be  committed  to  legal  custody. 

1494.  Disposition   of  party,   pending   proceedings  on   return. 

1495.  Defect   of   form   in   the   writ  Immaterial,    when. 

1496.  Imprisonment    after    discharge,    when    permitted. 

1497.  Warrant  may  issue  instead  of  writ,  in  certain  cases. 

1498.  Warrant  may  include  person  charged  with  illegal  detention. 

1499.  Warrant,  how  executed. 

1500.  Return   and  hearing  on. 

1501.  Party  may  be  discharged  or  remanded. 

1502.  Writ   and   process  may  issue  at  any   time. 

1503.  By  whom  Issued  and  when  returnable. 

1504.  Where  returnable. 

1505.  Damages  for  failure  to  Issue  or  obey  the  writ. 

Who  may  prosecute  writ. 

1473.  Every  person  unlawfully  imprisoned  or  restrained  of 
his  liberty,  under  any  pretense  whatever,  may  prosecute  a  writ 
of  habeas  corpus,  to  inquire  into  the  cause  of  such  imprisonment 
or  restraint.  [Amendment  approved  March  30,  1874;  amend- 
ments 1873-4,   454.     In  effect  July   1,   1874.] 

Application  for,  how  made. 

1474.  Application  for  the  writ  is  made  by  petition,  signed 
either  by  the  party  for  whose  relief  it  is  intended,  or  by  some 
person  in  his  behalf,  and  must  specify: 

1.  That  the  person  in  whose  bohalf  the  writ  is  applied  for 
is  imprisoned  or  restrained  of  his  liberty,  the  officer  or  person 
by  whom  he  is  so  confined  or  restrained,  and  the  place  where, 
naming  all  the  parties,  if  they  are  known,  or  describing  them, 
if  they  are  not  known; 


1475-1480  PENAL  CODE.  740 

2.  If  the  imprisonment  is  alleged  to  be  illegal,  the  petition 
must  also  state  in  what  the  alleged  illegality  consists; 

3.  The  petition  must  be  verified  by  the  oath  or  affirmation 
of  the  party  making  the  application. 

By  whom   issued,  and   before  whom   returnable. 

1475.  The  writ  of  habeas  corpus  may  be  granted: 

1.  By  the  Supreme  Court,  or  any  justice  thereof,  upon  petition 
by  or  on  behalf  of  any  person  restrained  of  his  liberty  in  this 
state.  When  so  issued  it  may  be  made  returnable  before  the 
court,  or  any  justice  thereof,  or  before  any  Superior  Court  or 
any  judge  thereof. 

2.  By  the  Superior  Courts,  or  a  judge  thereof,  upon  petition 
by  or  on  behalf  of  any  person  restrained  of  his  liberty  in  their 
respective  counties.  [Amendment  approved  February  18,  1880; 
amendments  1880,  p.  4.    In  effect  February  18,   1880.] 

Writ  must  be  granted  without  delay. 

1476.  Any  court  or  judge  authorized  to  grant  the  writ,  to 
whom  a  petition  therefor  is  presented,  must,  if  it  appear  that 
the  writ  ought  to  issue,  grant  the  same  without  delay. 

Writ^  what  to  contain. 

1477.  The  writ  must  be  directed  to  the  person' having  cus- 
tody of  or  restraining  the  person  on  whose  behalf  the  appli- 
cation is  made,  and  must  command  him  to  have  the  body  of 
such  person  before  the  court  or  judge  before  whom  the  writ  is 
returnable,  at  a  time  and  place  therein  specified. 

How  served. 

1478.  If  the  writ  is  directed  to  the  sheriff  or  other  minis- 
terial officer  of  the  court  out  of  which  it  issues,  it  must  be 
delivered  by  the  clerk  to  such  officer  without  delay,  as  other  writs 
are  delivered  for  service.  If  it  is  directed  to  any  other  person, 
it  must  be  delivered  to  the  sheriff,  and  be  by  him  served  upon 
such  person  by  delivering  the  same  to  him  without  delay.  If 
the  person  to  whom  the  writ  is  directed  cannot  be  found,  or 
refuses  admittance  to  the  officer  or  person  serving  or  delivering 
such  writ,  it  may  be  served  or  delivered  by  leaving  it  at  the 
residence  of  the  person  to  whom  it  is  directed,  or  by  affixing 
It  to  some  conspicuous  place  on  the  outside  either  of  his  dwelling- 
house  or  of  the  place  where  the  party  is  confined  or  under 
restraint. 

77  Cal.    IGO;   126  Cal.    C16. 

Proceedings  upon  disobedience  to  the  writ. 

1479.  If  the  person  to  whom  the  writ  is  directed  refuses,  after 
service,  to  obey  the  same,  the  court  or  judge,  upon  affidavit, 
must  issue  an  attachment  against  such  person,  directed  to  the 
sheriff  or  coroner,  commanding  nim  forthwith  to  apprehend  such 
person  and  bring  him  immediately  before  such  court  or  judge; 
and  upon  being  so  brought,  he  must  be  committed  to  the  jail 
of  the  county  until  he  makes  due  return  to  such  writ,  or  is 
otherwise  legally  discharged. 

Return,   what  to   contain. 

1480.  The  person  upon  whom  the  writ  is  served  must  state  in 
his  return,  plainly  and  unequivocally: 

1.  Whether  he  has-  or  has  not  the  party  in  his  custody,  or 
under  his  power  or  restraint; 


741  WRIT  OP  HABEAS  CORPUS.  1481-1484 

2.  If  he  has  the  party  in  his  custody  or  power,  or  under  hia 
restraint,  he  must  state  the  authority  and  cause  of  such 
imprisonment  or  restraint; 

3.  If  the  party  is  detained  by  virtue  of  any  writ,  warrant,  or 
other  written  authority,  a  copy  thereof  must  be  annexed  to  the 
return,  and  the  original  produced  and  exhibited  to  the  court  or 
judge  on  the  hearing  of  such  return; 

4.  If  the  person  upon  whom  the  writ  is  served  had  the  party 
in  his  power  or  custody,  or  under  his  restraint,  at  any  time 
prior  or  subsequent  to  the  date  of  the  writ  of  habeas  corpus, 
but  has  transferred  such  custody  or  restraint  to  another,  the 
return  must  state  particularly  to  whom,  at,  what  time  and  place, 
for  what  cause,  and  by  what  authority  such  transfer  took 
place; 

5.  The  return  must  be  signed  by  the  person  making  the 
same,  and,  except  when  such  person  is  a  sworn  public  officer, 
and  makes  such  return  in  his  official  capacity,  it  must  be  verified 
by  his  oath. 

.   71   Cal.    238. 

Body  must  be  produced,  when. 

1481.  The  person  to  whom  the  writ  is  directed,  if  It  Is 
served,  must  bring  the  body  of  the  party  in  his  custody  or  under 
his  restraint,  according  to  the  command  of  the  writ,  except  In 
the  cases  specified  in  the  next  section. 

Hearing   without  production   of  the  body. 

1482.  When,  from  sickness  or  infirmity  of  the  person  directed 
to  be  produced,  he  cannot,  without  danger,  be  brought  before 
the  court  or  judge,  the  person  in  whose  custody  or  power  he 
Is  may  state  that  fact  in  his  return  to  the  writ,  verifying  the 
same  by  affidavit.  If  the  court  or  judge  is  satisfied  of  the  truth 
of  such  return,  and  the  return  to  the  writ  is  otherwise  suffi- 
cient, the  court  or  judge  may  proceed  to  decide  on  such  return, 
and  to  dispose  of  the  matter  as  if  such  party  had  been  pro- 
duced on  the  writ,  or  the  hearing  thereof  may  be  adjourned 
until  such  party  can  be  produced. 

Hearing  on  return. 

1483.  The  court  or  judge  before  whom  the  writ  Is  returned 
must,  immediately  after  the  return,  proceed  to  hear  and 
examine  the  return,  and  such  other  matters  as  may  be  properly 
submitted  to  their  hearing  and  consideration. 

Proceedingo  on  the  hearing. 

1484.  The  party  brought  before  the  court  or  judge,  on  the 
return  of  the  writ,  may  deny  or  controvert  any  of  the  material 
facts  or  matters  set  forth  in  the  return,  or  except  to  the  suffi- 
ciency thereof,  or  allege  any  fact  to  show  either  that  his 
Imprisonment  or  detention  is  unlawful,  or  that  he  is  entitled 
to  his  discharge.  The  court  or  judge  must  thereupon  proceed 
in  a  summary  way  to  hear  such  proof  as  may  be  produced 
against  such  imprisonment  or  detention,  or  in  favor  of  the 
same,  and  to  dispose  of  such  party  as  the  justice  of  the  case  may 
require,  and  have  full  power  and  authority  to  require  and  com- 
pel the  attendance  of  witnesses,  by  process  of  subpoena  and 
attachment,  and  to  do  and  perform  all  other  acts  and  things 
necessary  to  a  full  and  fair  hearing  and  determination  of  the 
case. 

59  Cal.  422:  92  Cal.   190;  126  Cal.   619. 


1485-1489  PENAL  CODE.  T42 

When  court  may  discharge  the  party. 

1485.  If  no  legal  cause  is  shown  for  such  imprisonment  or 
restraint,  or  for  the  continuation  thereof,  such  court  or  judge 
must  discharge  such  party  from  the  custody  or  restraint  under 
which  he  is  held. 

When  to  remand  party. 

1486.  The  court  or  judge,  if  the  time  during  which  such  party 
may  be  legally  detained  in  custody  has  not  expired,  must  remand 
such  party,  if  it  appears  that  he  is  detained  in  custody: 

1.  By  virtue  of  process  issued  by  any  court  or  judge  of  the 
United  States,  in  a  case  where  such  court  or  judge  has  exclusive 
jurisdiction;   or, 

2.  By  virtue  of  the  final  judgment  or  decree  of  any  competent 
court  of  criminal  jurisdiction,  or  of  any  process  issued  upon 
such  judgment  or  decree. 

49    Cal.    162. 

Grounds  of  discharge  in  certain  cases. 

1487.  If  it  appears  on  the  return  of  the  writ  that  the  prisoner 
Is  in  custody  by  virtue  of  process  from  any  court  of  this  state, 
or  judge  or  officer  thereof,  such  prisoner  may  be  discharged 
in  any  of  the  following  cases,  subject  to  the  restrictions  of  the 
last  section: 

1.  When  the  jurisdiction  of  such  court  or  officer  has  been 
exceeded; 

2.  When  the  Imprisonment  was  at  first  lawful,  yet  by  some 
act,  omission,  or  event  which  has  taken  place  afterwards,  the 
party  has  become  entitled  to  a  discharge; 

3.  When  the  process  is  defective  in  some  matter  of  substance 
required  by  law,  rendering  such  process  void; 

4.  When  the  process,  though  proper  in  form,  has  been  issued 
in  a  case  not  allowed  by  law; 

5.  When  the  person  having  the  custody  of  the  prisoner  ia 
not  the  person  allowed  by  law  to  detain  him; 

6.  Where  the  process  is  not  authorized  by  any  order,  judg- 
ment, or  decree  of  any  court,  nor  by  any  provision  of  law; 

7.  Where  a  p&rty  has  been  committed  on  a  criminal  charge 
without  reasonable  or  probable  cause. 

64  Cal.    156;  82  Cal.   246. 

Not  to  be  discharged  for  defect  of  form   in  warrant. 

1488.  If  any  person  is  committed  to  prison,  or  is  in  custody 
of  any  officer  on  any  criminal  charge,  by  virtue  of  any  warrant 
of  commitment  of  a  justice  of  the  peace,  such  person  must  not 
be  discharged  on  the  ground  of  any  mere  defect  of  form  in  the 
warrant  of  commitment. 

S5   Cal.    SIO;    92   Cal.    426. 

Proceedings  on   defective  warrant. 

1489.  If  it  appears  to  the  court  or  judge,  by  affidavit  or  other- 
wise, or  upon  the  inspection  of  the  process  or  warrant  of  com- 
mitment, and  such  other  papers  in  the  proceedings  as  may  be 
shown  to  the  court  or  judge,  that  the  party  is  guilty  of  a 
criminal  offense,  or  ought  not  to  be  discharged,  such  court  or 
judge,  although  the  charge  is  defective  or  unsubstantially  set 
forth  in  such  process  or  warrant  of  commitment,  must  cause  the 
complainant  or  other  necessary  witnesses  to  be  subpoenaed  to 
attend  at  such  time  as  ordered,  to  testify  before  the  court  or 


743  WRIT  OF  HABEAS  CORPUS.  1490-14C6 

Judge;  and  upon  the  examination  he  may  discharge  such 
prisoner,  let  him  to  bail,  If  the  offense  be  bailable,  or  recommit 
him  to  custody,  as  may  be  just  and  legal. 

49   Cal.    437. 

Writ  for  purposes  of  bail. 

1490.  When  a  person  is  imprisoned  or  detained  in  custody 
on  any  criminal  charge,  for  want  of  bail,  such  person  is  entitled 
to  a  writ  of  habeas  corpus  for  the  purpose  of  giving  bail,  upon 
averring  that  fact  in  his  petition,  without  alleging  that  he  Is 
illegally  confined. 

54   Cal.    103;    92   Cal.    189. 

Judge  may  take  bail. 

1491.  Any  judge  before  whom  a  person  who  has  been  com- 
mitted on  a  criminal  charge  may  be  brought  on  a  writ  of  habeas 
corpus,  If  the  same  is  bailable,  may  take  an  undertaking  of  bail 
from  such  person  as  in  other  cases,  and  file  the  same  in  the 
proper  court. 

04    Cai.    103;    92    Cal.    IS,. 

Judge,  when  to  remand. 

1492.  If  a  party  brought  before  the  court  or  judge  on  the 
return  of  the  writ  is  not  entitled  to  his  discharge,  and  is  not 
bailed,  where  such  bail  is  allowable,  the  court  or  judge  must 
remand  him  to  custody  or  place  him  under  the  restraint  from 
which  he  was  taken,  if  the  person  under  whose  custody  or 
restraint  he  was  is  legally  entitled  thereto. 

54   Cal.   103. 

Person  in   Illegal,  may  be  committed  to  legal  custody. 

1493.  In  cases  where  any  party  is  held  under  illegal  restraint 
or  custody,  or  any  other  person  is  entitled  to  the  restraint  or 
custody  of  such  party,  the  judge  or  court  may  order  such  party 
to  be  committed  to  the  restraint  or  custody  of  such  person  as  is 
by  law  entitled  thereto. 

126  Cal.    619;   128  Cal.   31. 

Disposition  of  party,  pending  proceedings  on  return. 

1494.  Until  judgment  is  given  on  the  return,  the  court  or 
Judge  before  whom  any  party  may  be  brought  on  such  writ 
may  commit  him  to  the  custody  of  the  sheriff  of  the  county,  or 
place  him  in  such  care  or  under  such  custody  as  his  age  or  cir- 
cumstances may  require. 

Defect  of  form   in  the  writ  immaterial,  when. 

1495.  No  writ  of  habeas  corpus  can  be  disobeyed  for  defect 
of  form,  if  it  sufficiently  appear  therefrom  in  v/hose  custody  or 
nnder  whose  restraint  the  party  imprisoned  or  restrained  is,  the 
officer  or  person  detaining  him,  and  the  court  or  judge  before 
whom  he  is  to  be  brought. 

Imprisonment   after  discharge,   when    permitted. 

1496.  No  person  who  has  been  discharged  by  the  order  of 
the  court  or  judge  upon  habeas  corpus  can  be  again  imprisoned, 
restrained,  or  kept  in  custody  tor  the  same  cause,  except  in  the 
following  cases: 

1.  If  he  has  been  discharged  from  custody  on  a  criminal 
charge,  and  is  afterwards  committed  for  the  same  offense,  by 
legal  order  or  process; 


1497-1504  PENAL  CODE.  744 

2.  If,  after  a  discharge  ior  defect  of  proof,  or  for  any  defect 
of  the  process,  warrant,  or  commitment  in  a  criminal  case,  the 
prisoner  Is  again  arrested  on  sufficient  proof  and  committed 
by  legal  process  for  the  same  offense. 

64   Cal.    156. 

Warrant  may  issue  instead  of  writ,  in  certain  cases. 

1497.  When  it  appears  to  any  court,  or  judge,  authorized  by 
law  to  issue  the  writ  of  habeas  corpus,  that  any  one  is  illegally 
held  in  custody,  confinement,  or  restraint,  and  that  there  is 
reason  to  believe  that  such  person  will  be  carried  out  o:  the 
jurisdiction  of  the  court  or  judge  before  whom  the  Application 
is  made,  or  will  suffer  some  irreparable  injury  before  com- 
pliance with  the  writ  of  habeas  corpus  can  be  enforced,  such 
court  or  judge  may  cause  a  warrant  to  be  issued,  reciting  the 
facts,  and  directed  to  the  sheriff,  coroner,  or  constable  of  the 
county,  commanding  such  officer  to  take  such  person  thus  held 
in  custody,  confinement,  or  restraint,  and  forthwith  bring  him 
before  such  court  or  judge,  to  be  dealt  with  according  to  law. 

Warrant  may  include  person  cFiarged  with  illegal  detention. 

1498.  The  court  or  judge  may  also  insert  in  such  warrant 
a  command  for  the  apprehension  of  the  person  charged  with 
such  illegal  detention  and   restraint. 

Warrant,  how  executed. 

1499.  The  oflJcer  to  whom  such  warrant  is  delivered  must 
execute  it  by  bringing  the  person  therein  named  before  the 
court  or  judge  who  directed  the  issuing  of  such  warrant. 

Return  and  hearing  on. 

1500.  The  person  alleged  to  have  such  party  under  illegal 
confinement  or  restraint  may  make  return  to  such  warrant 
as  in  case  of  a  writ  of  habeas  corpus,  and  the  same  may  be 
denied,  and  like  allegations,  proofs,  and  trial  may  thereupon 
be  had  as  upon  a  return  to  a  writ  of  habeas  corpus. 

Party  may  be  discharged  or  remanded. 

1501.  If  such  party  is  held  under  illegal  restraint  or  custody, 
he  must  be  discharged;  and  if  not,  he  must  bo  restored  to  the 
care  or  custody  of  the  person  entitled  thereto. 

Writ  and  process  may  issue  at  any  time. 

1502.  Any  writ  or  process  authorized  by  this  chapter  may  be 
issued  and  served  on  any  day  or  at  any  time. 

By  whom  issued  and  when  returnable. 

1503.  All  writs,  warrants,  process,  and  subpoenas  authorized 
by  the  provisions  of  this  chapter  must  be  issued  by  the  clerk- 
of  the  court,  and,  except  subpoenas,  must  be  sealed  with  the 
seal  of  such  court,  and  served  and  returned  forthwith,  unless 
the  court  or  judge  shall  specify  a  particular  time  for  any  such 
return. 

Where  returnable. 

1504.  All  such  writs  and  process,  when  made  returnable 
before  a  judge,  must  be  returned  before  him  at  the  county 
seat,  and  there  heard  and  determined.  [Amendment  approved 
February  18,  1880,  p.  4.] 

69   Cal.    238. 


745  HABEAS  CORPUS — CORONERs'  INQUE8TP.  1506-1613 

Damages  for  failure  to   issue  or  obey  the   writ. 

1505.  If  any  judge,  after  a  proper  application  Is  made,  refuses 
to  grant  an  order  for  a  writ  of  habeas  corpus,  or  If  the  officer 
or  person  to  whom  such  writ  may  be  directed,  refuses  obedience 
to  the  command  thereof,  he  shall  forfeit  and  pay  to  the  person 
aggrieved  a  sum  not  exceeding  five  thousand  dollars,  to  be 
recovered  by  action  in  any  court  of  competent  jurisdiction. 

79   Cal.   31. 


CHAPTER  II. 

OF  CORONERS'  INQUESTS  AND  DUTIES  OF  CORONERS. 

Sec.    1.110.  Coroner  to  summon  jury  to  Inaulre  into  cause  of  death. 

l.Ml.  Jurors  to  be  sworn. 

ir(12.  Witnesses  to  be  summoned. 

1513.  Witnesses  compelled  to  attend. 

1514.  Verdict  of  jury  in  writing.     What  to  contain. 

1515.  Testimony    in   writing,   and   where   filed. 

1516.  Exception. 

1517.  Coroner  to  issue  warrant,   when. 

1518.  Form  of  warrant. 

1519.  How  served. 

Coroner  to  summon  jury  to   inquire   into  cause  of  death. 

1510.  When  a  coroner  is  informed  that  a  person  has  been 
killed,  or  has  committed  suicide,  or  has  suddenly  died  under 
such  circumstances  as  to  afford  a  reasonable  ground  to  sus- 
pect that  his  death  has  been  occasioned  by  the  act  of  another 
by  criminal  means,  he  must  go  to  the  place  where  the  body  is, 
cause  it  to  be  exhumed,  if  it  has  been  interred,  and  summon 
not  less  than  nine  nor  more  than  fifteen  persons,  qualified  by 
law  to  serve  as  jurors,  to  appear  before  him  forthwith,  at  the 
place  where  the  body  of  deceased  is,  to  inquire  into  the  cause 
of  the  death. 

Jurors  to   be  sworn. 

1511.  "When  six  or  more  of  the  jurors  attend,  they  must  be 
sworn  by  the  coroner  to  inquire  who  the  person  was,  and  when, 
where,  and  by  what  means  he  came  to  his  death,  and  into  the 
circumstances  attending  his  death;  and  to  render  a  true  verdict 
thereon,  according  to  the  evidence  offered  them,  or  arising  from 
the  inspection  of  the  body. 

Witnesses  to  be  summoned. 

1512.  Coroners  may  issue  subpoenas  for  witnesses,  returnable 
forthwith,  or  at  such  time  and  place  as  they  may  appoint, 
which  may  be  served  by  any  competent  person.  They  must 
summon  and  examine  as  witnesses  every  person  who,  in  their 
opinion,  or  that  of  any  of  the  jury,  has  any  knowledge  of  the 
facts,  and  may  summon  a  surgeon  or  physician  to  inspect  the 
body  and  give  a  professional  opinion  as  to  the  cause  of  the 
death. 

Witnesses  compelled  to  attend. 

1513.  A  witness  served  with  a  subpoena  may  be  compelled 
to  attend  and  testify,  or  punished  by  the  coroner  for  disobedi- 
ence, in  like  manner  as  upon  a  subpoena  issued  by  a  justice  of 
the  peace. 

c9    Cal.    6ol;    122    Cal.    638. 


1614-1519  PENAL  CODE.  746 

Verdict  of  jury  in  writing.     Wliat  to  contain. 

1514.  After  inspecting  the  body  and  hearing  the  testinaony, 
the  jury  must  render  their  verdict  and  certify  the  same  by  an 
inquisition  in  writing,  signed  by  them,  and  setting  forth  who 
the  person  Icilled  is,  and  when,  where,  and  by  what  means  he 
came  to  his  death;  and  if  he  was  killed,  or  his  death  occasioned 
by  the  act  of  another,  by  criminal  means,  who  is  guilty  thereof. 

Testimony  in  writing,  and  where  filed. 

1515.  The  testimony  of  the  witnesses  examined  before  the 
coroner's  jury  must  be  reduced  to  writing  by  the  coroner,  or 
under  his  direction,  and  forthwith  filed  by  him,  with  the 
inquisition,  in  the  office  of  the  clerk  of  the  Superior  Court  of 
the  county.  [Amendment  approved  April  12,  1880;  Amend- 
ments 1880,  p.  35.     In  effect  April  12,  1880.] 

59    Cal.    650. 

Exception. 

1516.  If,  however,  the  person  charged  with  the  commission 
of  the  offense  is  arrested  before  the  inquisition  can  be  filed, 
the  coroner  must  deliver  the  same,  with  the  testimony  taken, 
to  the  magistrate  before  whom  such  person  may  be  brought, 
who  must  return  the  same,  with  the  depositions  and  statement 
taken  before  him,  to  the  office  of  the  clerk  of  the  Superior 
Court  of  the  county.  [Amendment  approved  April  12,  1880; 
Amendments  1880,  p.  35.    In  effect  April  12,  1880.J 

Coroner  to  issue  warrant,  when. 

1517.  If  the  jury  find  that  the  person  was  killed  by  another, 
under  curcumstances  not  excusable  or  justifiable  by  law,  or  that 
his  death  was  occasioned  by  the  act  of  another  by  criminal 
means,  and  the  party  committing  the  act  is  ascertained  by  the 
inquisition,  and  is  not  in  custody,  the  coroner  must  issue  a 
warrant,  signed  by  him,  with  his  name  of  office,  into  one  or 
more  counties,  as  may  be  necessary  for  the  arrest  of  the.',per- 
son  charged. 

Form  of  warrant. 

1518.  The  coroner's  warrant  must  be  in  substantially  the 
following  form: 

County  of 

The  people  of  the  state  of  California,  to  any  sheriff,  constable, 

marshal,  or  policeman  in  this  state: 

Ad  inquisition  having  been  this  day  found  by  a  coroner's 
jury  before  me,  stating  that  A  B  has  come  to  his  death  by 
the  act  of  C  D,  by  criminal  means  [or  as  the  case  may  be,  as 
found  by  the  inquisition],  you  are  therefore  commanded  forth- 
with to  arrest  the  above  named  C  D,  and  take  him  before  the 
nearest  or  most  accessible   magistrate  in   this   county. 

Given    under    my    hand    this    day    of    ,    A.    D. 

eighteen  .     E  F,  Coroner  of  the  county  of . 

How  served. 

1519.  The  coroner's  warrant  may  be  served  in  any  county, 
and  the  officer  serving  it  must  proceed  thereon,  in  all  respects, 
as  upon  a  warrant  cf  arrest  on  an  information  before  a  magis- 
trate, except  that  when  served  in  another  county  it  need  not  be 
indorsed  by  a  magistrate  ot  that  county. 


747        coroners'  inquests— search  warrants.     1523-1524 

CHAPTER  III. 

OP  SEARCH  WARRANTS. 

Bee.    1523.  Search-warrant  defined. 

1524.  Upon  what  ground  It  may  Issue. 

Jf«5'  ^r  cannot  be  Issued  but  upon  probable  cause,  etc. 

i-TX-  Magistrates   must   examine,    on   oath,   complainant,   etc. 

lo27.  Depositions,  what  to  contain. 

1528.  When   to    issue   warrant. 

1529.  Form   of  warrant. 

1530.  By  whom  served. 

1531.  Oflk'cr  may  break  open  door,  etc.,  to  execute  warrant. 

1532.  May  break  open  door,  etc.,  to  liberate  person  acting  in  his 

aid. 

1533.  When   warrant  may   be  served  In  the  night. 

1534.  Within    what    time   warrant   must  be   executed. 

1535.  Officer  to  give  receipt  for  property  taken. 
1530.    I'roperty,  how  disposed   of. 

1537.  Return  of  warrant  and  inventory  of  property  taken. 

1538.  Copy  of  Inventory,  to  whom  delivered. 

1539.  Proceedings,   if  grounds  of  warrant  are  controverted. 

1540.  Property,    when   to   be  restored. 

1541.  Depositions,  warrants,  etc.,  to  be  returned  by  magistrate  to 

county  court.. 

1542.  Search  of  defendant  In  presence  of  magistrate. 

Search  warrant  defined. 

1523.  A  search  warrant  is  an  order  in  writing,  in  the  name 
of  the  people,  signed  by  a  magistrate,  directed  to  a  peace 
officer,  commanding  him  to  search  for  personal  property,  and 
bring  it  before  the  magistrate. 

'!  68  Cal.  28S.  « 

Upon  what  grounds  it  may  issue. 

1524.  It  may  be  issued  upon  either  of  the  following  grounds: 

1.  When  the  property  was  stolen  or  embezzled;  in  which 
case  it  may  be  taken  on  the  warrant  from  any  place  in  which 
it  is  concealed,  or  from  the  possession  of  the  person  by  whom 
it  was  stolen  or  embezzled,  or  from  any  person  in  whose 
possession  it  may  be. 

2.  When  it  was  used  as  the  means  of  committing  a  felony; 
In  which  case  it  may  be  taken  on  the  warrant  from  the  place 
in  which  it  is  concealed,  or  from  the  possession  of  the  person 
by  whom  it  was  used  in  the  commission  of  the  offense,  or 
from  any  person  in  whose  possession  it  may  be. 

3.  When  it  is  in  the  possession  of  any  person  with  the  intent 
to  use  it  as  a  means  of  committing  a  public  offense,  or  in  tho 
possession  of  another  to  whom  he  may  have  delivered  it  for 
the  purpose  of  concealing  it  cr  preventing  its  being  discovered; 
in  which  case  it  may  be  taken  on  the  warrant  from  such  person, 
or  from  any  place  occupied  by  him,  or  under  his  control,  or 
from  the  possession  of  the  person  to  whom  he  may  have  so 
delivered  it. 

4.  When  the  property  is  a  cask,  keg,  bottle,  vessel,  siphon, 
can,  case,  or  other  package,  bearing  printed,  branded,  stamped, 
engraved,  etched,  blown,  or  otherwise  attached  or  produced 
thereon  the  duly  filed  trademark  or  name  of  the  person  by 
whom,  or  in  whose  behalf,  the  search  warrant  is  applied  for, 
in  the  possession  of  any  person  except  the  owner  thereof,  with 
the  intent  to  sell  or  traffic  in  the  same,  or  refill  the  same  with 
Intent  to  defraud  the  owner  thereof,  with  such  intent,  and 
without  such  owner's  consent  thereof,  or  unless  the  same  shall 
have  been  purchased  from  the  owner  thereof;  in  which  case  it 
may  be  taken  on  the  warrant  from  such  person,  or  from  any 


1525-1530   ^        PENAL  CODE.  748 

place  occupie4>by  him,  or  under  his  control,  or  from  the 
possession  of  the  person  to  whom  he  may  have  delivered  it. 
[In  effect  60  days  from  March  9,  1899,  p.  87.] 

It  cannot  be  issued  but  upon  probable  cause,  etc. 

1525.  A  search  warrant  cannot  be  issued  but  upon  probable 
cause,  supported  by  affidavit,  naming  or  describing  the  person, 
and  particularly  describing  the  property  and  the  place  to  be 
searched. 

Magistrates  must  examine,  on  oath,  complainant,  etc. 

1526.  The  magistrate  must,  before  issuing  the  warrant, 
extimine  on  oath  the  complainant,  and  any  witnesses  he  may 
produce,  and  take  their  depositions  in  writing,  and  cause  them 
to  be  subscribed  by  the  parties  making  them. 

75  Cal.    372. 

Depositions,  what  to  contain. 

1527.  The  depositions  must  set  forth  the  facts  tending  to 
establish  the  grounds  of  the  application,  or  probable  cause  for 
believing  that  they  exist. 

75  Cal.    372. 

When  to  issue  warrant. 

1528.  If  the  magistrate  is  thereupon  satisfied  of  the  existence 
of  the  grounds  of  the  application,  or  that  there  is  probable 
cause  to  believe  their  existence,  he  must  issue  a  search  warrant, 
signed  by  him  with  his  name  of  office,  to  a  peace  officer  in  his 
county,  commanding  him  forthwith  to  search  the  person  or 
place  named,  for  the  property  specified,  and  to  bring  it  before 
the  magistrate. 

Form   of  warrant. 

1529.  The  warrant  must  be  in  substantially  the  following 
form: 

County  of . 

The  people  of  the  state  of  California  to  any  sheriff,  constable, 

marshal,  or  policeman  in  the  county  of  : 

Proof,  by  affidavit,  having  been  this  day  made  before  me  by 
[naming  every  person  Avhose  affidavit  has  been  taken],  that 
[stating  the  grounds  of  the  application,  according  to  section 
1525,  or,  if  the  affidavit  be  not  positive,  that  there  is  probable 
cause  for  believing  that — stating  the  ground  of  the  application 
in  the  same  manner],  you  are  therefore  commanded,  in  the  day- 
time, [or  at  any  time  of  the  day  or  night,  as  the  case  may  be, 
according  to  section  1533],  to  make  immediate   search   on  the 

person  of  C  D  [or  in  the  house  situated  ,  describing  it  or 

any  other  place  to  be  searched,  with  reasonable  particularity, 
as  the  case  may  be]  for  the  following  property:  [describing 
it  with  reasonable  particularity] ;  and  if  you  find  the  same  or 
any  part  thereof,  to  bring  it  forthwith  before  me  at  [stating 
the  place]. 

Given  under  my  hand,  and  dated  this  ■ —  day  of  — , 

A.  D.  eighteen  . 

B  F,  Justice  of  the  Peace  [or  as  the  case  may  be]. 

68  Cal.   289. 

By  whom  served. 

1530.  A  search  warrant  may  in  all  cases  be  served  by  any 
of  the  officers  mentioned  in  its  directions,  but  by  no  other 
person,  except  in  aid  of  the  officer  on  his  requiring  it,  he  being 
present  and  acting  in  its  execution. 


749  SEARCH  WARRANTS.  1531-1538 

Officer   may   break   open   door,   etc.,  to   execute   warrant. 

1531.  The  officer  may  break  open  any  outer  or  inner  door  or 
window  of  a  house,  or  any  part  of  a  house,  or  anything  therein, 
to  execute  the  warrant,  ii,  after  notice  of  his  authority  and 
purpose,  he  is  refused  admittance. 

May  break  open  door,  etc.,  to  liberate  person  acting  {n  his  aid. 

1532.  He  may  brealt  open  any  outer  or  inner  door  or  window^ 
of  a  house,  for  the  purpose  of  liberating  a  person  who,  having 
entered  to  aid  him  in  the  execution  of  the  warrant,  is  detained 
therein,  or  when  necessary  for  his  own  liberation. 

When  warrant  may  be  served  in  the  night. 

1533.  The  magistrate  must  insert  a  direction  in  the  warrant 
that  it  be  served  in  the  daytime,  unless  the  affidavits  are  posi- 
tive that  the  property  is  on  the  person  or  in  the  place  to  be 
searched,  in  which  case  he  may  insert  a  direction  that  it  be 
served  at  any  time  Of  the  day  or  night. 

Within  what  time  warrant  must  be  executed. 

1534.  A  search  warrant  must  be  executed  and  returned  to 
the  magistrate  who  issued  it  within  ten  days  after  its  date; 
after  the  expiration  of  this  time  the  warrant,  unless  executed, 
is  void. 

Officer  to   give    receipt  for   property  taken. 

1535.  When  the  officer  takes  property  under  the  warrant, 
he  must  give  a  receipt  for  the  property  taken  (specifying  it  In 
detail)  to  the  person  from  whom  it  was  taken  by  him,  or  In 
whose  possession  it  was  found;  or,  in  the  absence  of  any  person, 
he  must  leave  it  in  the  place  where  he  found  the  property. 

Property,  how  disposed  of. 

1536.  When  the  property  is  delivered  to  the  magistrate,  he 
must,  if  it  was  stolen  or  embezzled,  dispose  of  it  as  provided 
in  sections  1408  to  1413,  inclusive.  If  it  was  taken  on 
a  warrant  issued  on  the  grounds  stated  in  the  second  and 
third  subdivisions  of  section  1524,  he  must  retain  it  in  his  pos- 
session, subject  to  the  order  of  the  court  to  which  he  Is  required 
to  return  the  proceedings  before  him,  or  of  any  other  court  in 
which  the  offense  in  respect  to  which  the  property  taken  is 
triable. 

68    Cal.    289;    75'  Cal.    372. 

Return    of  warrant   and    inventory  of   property  taken. 

1537.  The  officer  must  forthwith  return  the  warrant  to  the 
magistrate,  and  deliver  to  him  a  written  inventory  of  the 
property  taken,  made  publicly  or  in  the  presence  of  the  person 
from  whose  possession  it  was  taken,  and  of  the  applicant  for 
the  warrant,  if  they  are  present,  verified  by  the  affidavit  of  the 
officer  at  the  foot  of  the  inventory,  and  taken  before  the 
magistrate  at  the  time,  to  the  following  effect:  "I,  R  S,  the 
officer  by  whom  this  warrant  was  executed,  do  swear  that  the 
auove  inventory  contains  a  true  and  detailed  account  of  all 
the  property  taken  by  me  on  the  warrant." 

Copy  of   inventory,  to  whom   delivered. 

1538.  The  magistrate  must  thereupon,  if  required,  deliver  a 
copy  of  the  inventory  to  the  person  from  whose  possession 
the  property  was  taken,  and  to  the  applicant  for  the  warrant. 


1539-1547  PENAL  CODE.  750 

Proceedings,    if  grounds  of  warrant  are   controverted. 

1539.  If  the  grounds  on  which  the  warrant  was  issued  be 
controverted,  he  must  proceed  to  take  testimony  in  relation 
thereto,  and  the  testimony  of  each  witness  must  be  reduced  to 
writing  and  authenticated  in  the  manner  prescribed  in  section 
869. 

Property,  when  to  be  restored. 

1540.  If  it  appears  that  the  property  taken  is  not  the  same 
as  that  described  in  the  warrant,  or  that  there  is  no  probable 
cause  for  believing  the  existence  of  the  grounds  on  which,  the 
warrant  was  issued,  the  magistrate  must  cause  it  to  be  restored 
to  the  person  from  whom  it  was  taken. 

Depositions,    warrants,    etc.,    to    be    returned    by    magistrate   to 
county  court. 

1541.  The  magistrate  must  annex  together  the  depositions, 
the  search  warrant  and  return,  and  the  inventory,  and  return 
them  to  the  next  term  of  the  county  court  having  power  to 
inquire  into  the  offenses  in  respect  to  which  the  search  war- 
rant was  issued,  at  or  before  its  opening  on  the  first  day. 

75  Cal.    372. 

Search  of  defendant  in   presence  of  magistrate. 

1542.  When  a  person  charged  with  a  felony  Is  supposed  by 
the  magistrate  before  whom  he  is  brought  to  have  on  his 
person  a  dangerous  weapon,  or  anything  which  may  be  used 
as  evidence  of  the  commission  of  the  offense,  the  magistrate 
may  direct  him  to  be  searched  in  his  presence,  and  the  weapon 
or  other  thing  to  be  retained,  subject  to  his  order,  or  to  the 
order  of  the  court  in  which  the  defendant  may  be  tried. 

68   Cal.    288. 


CHAPTER  IV. 
PROCEEDINGS  AGAINST  FUGITIVES  FROM  JUSTICE. 

Sec.    1.547.  Rewards  for  the  apprehension  of  fugitives  from  justice. 

1548.  Fugitives  from   another  state,   when  to  be  delivered  up. 

1549.  Magistrate  to   Issue   warrant. 

1550.  Proceedings  for   the   arrest   and   commitment  of   the   person 

charged. 

1551.  When  and  for  what  time  to  be  committed. 
15.52.    His   admission   to   ball. 

1553.  Magistrate  must  notify  district  attorney  of  the  arrest. 

1554.  Duty   of  the  district  attorney. 

1.5.55.  Person  arrested,   when   to  be  dlscliargcd. 

15.5C.  Magistrate  to  return  his  proceedings  to  superior  court. 

1557.  Fugitives   from   this   state— accounts. 

1558.  No  fee  to  be  paid  to  public  officer  procuring  surrender. 

Rewards  for  the  apprehension   of  fugitives  from  justice. 

1547.  The  governor  may  offer  a  reward,  not  exceeding  one 
thousand  dollars,  payable  out  of  the  general  fund,  for  the 
apprehension: 

1.  Of  any  convict  wha  has  escaped  from  the  state  prison; 
or, 

2.  Of  any  person  who  has  committed,  or  is  charged  with  the 
commission  of,  an  offense  punishable   with   death. 

120   Cal.    265. 


751  PROCEEDINGS  AGAINST  FUGITIVES.  1548-1654 

Fugitives  from   another  state,  when  to  be  delivered   up. 

1548.  A  person  charged  in  any  state  of  the  United  States 
with  treason,  felony,  or  other  crime,  who  flees  from  justice  and 
is  found  in  this  state,  must,  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered  up  by 
the  governor  of  this  state,  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime. 

49   Cal.    43. 

Magistrate  to  issue  warrant. 

1549.  A  magistrate  may  issue  a  warrant  for  the  apprehension 
of  a  person  so  charged,  who  flees  from  justice  and  is  found  in 
this  state. 

49  Cal.    434. 

Proceedings    for    the    arrest    and    commitment    of    the    person 
charged. 

1550.  The  proceedings  for  the  arrest  and  commitment  of  a 
person  charged  are,  in  all  respects,  similar  to  those  provided 
In  this  code  for  the  arrest  and  commitment  of  a  person  charged 
with  a  public  offense  committed  in  this  state,  except  that  an 
exemplified  copy  of  an  indictment  found,  or  other  judicial 
proceedings  had  against  him  in  the  state  in  which  he  is 
charged  to  have  committed  the  offense,  may  be  received  as 
evidence  before  the  magistrate. 

49  Cal.    437;    51   Cal.    2<So. 

When  and  for  what  time  to  be  committed.. 

1551.  If,  from  the  examination,  it  appear  that  the  accused 
has  committed  the  crime  alleged,  the  magistrate,  by  warrant 
reciting  the  accusation,  must  commit  him  to  the  proper  custody 
in  his  county,  for  such  time,  to  be  specified  in  the  warrant, 
as  the  magistrate  may  deem  reasonable,  to  enable  the  arrest 
of  the  fugitive  under  the  warrant  of  the  executive  of  this 
state,  on  the  requisition  of  the  executive  authority  of  the 
state  in  which  he  committed  the  offense,  unless  he  gives  ball 
as  provided  in  the  next  section,  or  until  he  is  legally  dis- 
charged. 

His  admission  to  bail. 

1552.  The  magistrate  may  admit  the  person  arrested  to 
bail  by  an  undertaking  with  sufficient  securities,  and  in  such 
sum  as  he  deems  proper,  for  his  appearance  before  him  at  a 
time  specified  in  the  undertaking,  and  for  his  surrender  to 
arrest  upon  the  warrant  of  the  governor  of  this  state. 

Magistrate  must  notify  district  attorney  of  the  arrest. 

1553.  Immediately  upon  the  arrest  of  the  person  charged, 
the  magistrate  must  give  notice  thereof  to  the  district  attorney 
of   the   county. 

Duty  of  the  district  attorney. 

1554.  The  district  attorney  must  immediately  thereafter  give 
notice  to  the  executive  authority  of  the  state,  or  to  the  pros- 
ecuting attorney  or  presiding  judge  of  the  court  of  the  city 
or  county  within  the  state  having  jurisdiction  of  the  offense, 
to  the  end  that  a  demand  may  be  made  for  the  arrest  and 
surrender  of  the  person  charged. 


1555-1564  i»ENAL  CODE.  762 

Person   arrested,  when  to  be  discharged. 

1555.  The  person  arrested  must  be  discharged  from  custody 
or  bail,  unless,  before  the  expiration  of  the  time  designated 
In  the  warrant  or  undertaking,  he  is  arrested  under  the  war- 
rant of  the  governor  of  this  state. 

Magis%'ate  to  return   his  proceedings  to  Superior  Court. 

1556.  The  magistrate  must  return  his  proceedings  to  the 
Superior  Court  of  the  county,  which  must  thereupon  inquire 
into  the  cause  of  the  arrest  and  detention  of  the  person  charged, 
and  if  he  is  in  custody,  or  the  time  of  his  arrest  has  not 
elapsed,  it  may  discharge  him  from  detention,  or  may  order 
his  undertaking  of  bail  to  be  canceled,  or  may  continue  his 
detention  for  a  longer  time,  or  readmit  him  to  bail,  to  appear 
and  surrender  himself  within  a  time  specified  in  the  undertak- 
ing. [Amendment  approved  April  12,  1880;  Amendments 
1880,  p.  35.     In  effect  April  12,  1880. 

Fugitives  from  this  state — accounts. 

1557.  When  the  governor  of  this  state,  in  the  exercise  of  the 
authority  conferred  by  section  2,  article  IV  of  the  con- 
stitution of  the  United  States,  or  by  the  laws  of  this  state, 
demands  from  the  executive  authority  of  any  state  of  the 
United  States,  or  of  any  foreign  government,  the  surrender  to 
the  authorities  of  this  state  of  a  fugitive  from  justice,  who  has 
been  found  and  arrested  in  such  state  or  foreign  government, 
the  accounts  of  the  person  employed  by  him  to  bring  back  such 
fugitive  must  be  audited  by  the  board  of  examiners,  and  paid 
out  of  the  state  treasury. 

No  fee  to  be  paid  to   public  officer  procuring  surrender. 

1558.  No  compensation,  fee,  or  reward  of  any  kind  can  be 
paid  to  or  received  by  a  public  officer  of  this  state,  or  other 
person,  for  a  service  rendered  in  procuring  from  the  governor 
the  demand  mentioned  in  the  last  section,  or  the  surrender  of 
the  fugitive,  or  for  conveying  him  to  this  state,  or  detaining 
him  therein,  except  as  provided  for  in  such  section. 


CHAPTER    V. 

MISCELLANEOUS   PROVISIONS   RESPECTING   SPECIAL 

PROCEEDINGS    OF    A    CRIMINAL    NATURE. 

Sec.    1562.    Parties   to    special    proceedings,    how    designated. 

1563.  Entitling  affidavits. 

1564.  Subpoenas. 

Parties  to  special   proceedings,   how  designated. 

1562.  The  party  prosecuting  a  special  proceeding  of  a  crim- 
inal nature  is  designated  in  this  code  as  the  complainant,  and 
the  adverse  party  as  the  defendant. 

Entitling  affidavits. 

1563.  The  provisions  of  section  1401,  in  respect  to  entitling 
affidavits,  are  applicable  to  such  proceedings. 

Subpoenas. 

1564.  The  courts  and  magistrates  before  whom  such  pro- 
ceedings are  prosecuted  may  issue  subpoenas  for  witnesses, 
and  punish  their  disobedience  In  the  same  manner  as  in  a 
criminal  action. 


753  DISPOSITION  OF  FINES.  1567-1570 

TITLE    XIII. 

PROCEEDINGS  FOR  BRINGING  PERSONS  IMPRISONED  IN: 
THE   STATE   PRISON,   OR   THE  JAIL   OF  AN- 
OTHER COUNTY,  BEFORE  A  COURT. 

Sec.    1567.    Persons  Imprisoned  In  the  state  prison  or  the  jail  of  another 
county,  how  brought  before  a   court. 

Persons  imprisoned  in  tlie  state  prison  or  the  Jail  of  another 
county,  how  brought  before  a  court. 
1567.  When  it  is  necessary  to  have  a  person  imprisoned  In 
the  state  prison  brought  before  any  court,  or  a  person  impris- 
oned in  a  county  jail  brought  before  a  court  sitting  in  another 
county,  an  order  for  that  purpose  may  be  made  by  the  court 
and  executed  by  the  sheriff  of  the  county  where  it  is  made. 

'  •  rg  .82   Cal.    458;    92   Cal.    486. 

TITLE  XIV. 
DISPOSITION    OF   FINES    AND    FORFEITURES'. 

Sec.    1570.    Fines  and  forfeitures,  how  disposed  of. 

Fines  and  forfeitures,  how  disposed  of. 

1570.  All  fines  and  forfeitures  collected  in  any  court  must 
be  paid  to  the  county  treasurer  of  the  county  in  which  the 
court  is  held;  provided,  that  all  forfeitures  and  fines  collected 
in  any  court  for  the  violation  of  any  city  ordinance  shall  be 
paid  to  the  city  treasurer  of  the  city  in  which  such  ordinance 
Is  In  force.    [In  effect  February  28,  1901;  Stats,  p.  88 J 

65  Cal.  475;  88  Cal.  411. 


CRIMES--48 


PART  III. 


OP  THE  STATE  PRISON  AND  COUNTY  JAILS. 


TITLE  I. 
OP  THE  STATE  PRISON  AND  THE  DISCHARGE  OF  PRIS- 
ONERS  THEREFROM   BEFORE  THEIR  TERM   OF 
SERVICE  EXPIRES. 

Chapter  I.    Of  the  state  prison,  sees.  1573-87. 

II.    Of  the  discharge  of  prisoners  before  the  expira- 
tion of  their  term  of  service,  sees.  1590-5. 


CHAPTER  I. 
OF  THE  STATE  PRISON. 

Sec.    1573.  Under  the  charge  and  control  of  a  board  of  directors. 

1574.  President  pro  tem  of  the  senate,  when  to  act  as  director. 

1575.  Compensation  of  directors. 

1576.  Board  must  adopt  rules  and  reRulations. 

1577.  Board  may  appoint  warden  and  other  officers. 

1578.  Duties  of  clerk  and  other  officers. 

1579.  Monthly  reports  of  officers. 

1580.  Board  must  keep  accounts  and  report  to  the  governor. 

1581.  Persons  convicted  of  offenses  against  the  United  States. 

1582.  Disposition!  of  insane  prisoners. 

1583.  State    prison   fund. 

1584.  State    prison   fund,    how   disbursed. 

1585.  Board  cannot   contract  debts. 

1586.  Compensation   for   transportation   of  convicts. 

1587.  Contract  to  be  given  at  public  letting. 

1588.  Prohibiting  certain  employment  of  convict  labor. 

Under  the  charge  and  control  of  a  board  of  directors. 

1573.  The  state  prison  is  under  the  charge,  control,  and 
superintendence  of  a  board  of  directors,  consisting  of  the  gov- 
ernor, lieutenant  governor,  and   secretary  of  state. 

103    Cal.    225. 

President  pro  tem  of  the  senate,  when  to  act  as  director. 

1574.  In  case  of  a  vacancy  in  the  office  of  lieutenant  gov- 
ernor, the  president  pro  tem.  of  the  senate  may  perform  the 
duties  and  receive  the  compensation  provided  for  the  lieuten- 
ant governor. 

Compensation  of  directors. 

1575.  The  board  of  directors  are  to  receive  the  sum  of  sev- 
enty-five dollars  per  month,  each,  for  expenses  Incurred  by 
them;  in  addition  to  which  the  lieutenant  governor  is  paid  the 


755  STATE  PRISON  AND  COUNTY  JAILS.  1576-1582 

Bum  of  ten  dollars  per  day  for  each  day's  services  rendered  In 
the  performance  of  any  duty  at  the  prison. 

Board   must   adopt   rules  and    regulations. 

1576.  The  board  must  adopt  rules  and  regulations  for  the 
discipline  of  prisoners  and  the  government  of  the  prison,  which 
rules  must  be  printed,  and  copies  thereof  furnished  to  every 
officer  appointed  by  the  board. 

Board   may   appoint  warden   and   other  officers. 

1577.  The  board  may  appoint  a  warden,  clerk,  and  such 
other  officers  as  may  be  necessary  for  the  management  and 
safe-keeping  of  the  prisoners. 

Duties  of  clerk  and  other  officers. 

1578.  The  cleric  must  keep  a  record  of  the  transactions  of 
the  board,  and  he  and  the  warden  and  other  officers  appointed, 
must  perform  such  other  duties  as  are  required  by  the  board 
or  the  rules  and  regulations  adopted  thereby. 

Monthly  reports  of  officers. 

1579.  The  warden  and  other  officers  appointed  must  make  a 
monthly  report  to  the  board,  which  must  contain  a  statement 
of  business  done  and  transactions  had  in  their  several  depart- 
ments. 

Board  must  keep  accounts  and  report  to  the  governor. 

1580.  The  board  must  keep  correct  accounts  of  all  funds 
received  from  proceeds  of  convict  labor,  and  appropriate  such 
funds  to  the  maintenance  of  the  convicts  and  to  the  payment 
of  prison  expenses,  and  must  make  a  full  report  to  the  gov- 
ernor on  the  first  Monday  of  each  August  next  before  the  assem- 
bling of  the  legislature,  which  report  must  contain  a  complete 
statement  of  the  number  and  condition  of  the  prisoners  at  the 
prison;  the  number  and  character  of  officers  they  have 
appointed,  and  the  monthly  pay  received  by  each;  the  amount 
of  expenses  incurred,  and  for  what;  the  amount  and  condition 
of  personal  property,  belonging  to  the  state,  connected  with 
the  state  prison;  and  the  actual  condition  of  the  buildings  and 
property. 

Persons  convicted  of  offenses  against  the  United  States. 

1581.  The  authorities  of  the  state  prison  must  receive  into 
the  prison  any  person  convicted  of  an  offense  against  the  United 
States,  and  keep  such  person  in  solitary  confinement  or  at 
hard  labor,  or  in  confinement  with  or  without  hard  labor,  as 
provided  in  the  order  of  the  court  pronouncing  sentence,  until 
legally  discharged,  the  United  States  supporting  such  convict, 
and  paying  the  expenses  of  the  execution  of  his  sentence. 

Disposition  of  insane  prisoners. 

1582.  When  the  physician,  warden,  and  captain  of  the  yard 
of  the  state  prison,  after  an  examination,  are  of  opinion  that 
any  prisoner  is  insane,  they  must  certify  the  fact  under  oath 
to  the  governor,  who  may,  in  his  discretion,  order  the  removal 
of  such  prisoner  to  the  insane  asylum.  As  soon  as  the  authori- 
ties of  the  asylum   ascertain  that  such   person   is   not   insane, 


1583-1587  PENAL  CODE.  756 

they  must  immediately  notify  the  warden  of  that  fact,  and  there- 
upon the  warden  must  cause  such  prisoner  to  be  at  once 
returned  to  the  prison,  if  his  term  of  imprisonment  has  not 
expired. 

State  prison  fund. 

1583.  The  moneys  appropriated  by  the  legislature  and  the 
proceeds  of  the  labor  of  prisoners  constitute  the  state  prison 
fund. 

State   prison  fund,   how  disbursed. 

1584.  The  moneys  in  the  state  prison  fund  are  applicable 
to  the  payment  of  the  expenses  of  the  prison,  and  the  salaries 
of  the  directors  and  officers  thereof.  The  expenses  and  sal- 
aries must  be  audited  and  allowed  by  a  board  of  examiners 
of  state  prison  accounts,  consisting  of  the  attorney  general, 
treasurer,  and  controller;  after  which,  upon  the  order  of  the 
board  of  directors,  the  controller  must  draw  his  warrant  on 
the  treasurer  therefor,  and  the  treasurer  must  pay  the  same 
out  of  such  fund. 

Board  cannot  contract  debts. 

1585.  The  board  of  directors  cannot  contract  any  debt  or 
Incur  any  liability  binding  upon  the  state. 

Compensation  for  transportation  of  convicts. 

1586.  Sheriffs  delivering  prisoners  at  the  state  prisons  must 
receive  all  expenses  necessarily  incurred  in  their  transporta- 
tion, and  also  a  just  and  reasonable  compensation  for  their 
own  services,  the  amount  of  the  expenses  and  compensation  in 
each  case  to  be  audited  and  allowed  by  the  board  of  examiners 
and  paid  out  of  any  moneys  in  the  state  treasury  appropriated 
for  that  purpose,  and  no  further  compensation  shall  be  received 
by  sheriffs  for  such  transportation  or  services.  [Amendment 
approved  April  9,  1880;  Amendments  1880,  p.  31;  repealed  all 
conflicting  acts.     In  effect  April  9,  1880.] 

50  Cal.   U9;  77  Cal.   595. 

Contract  to  be  given  at  public  letting. 

'587.  The  board  of  directors  are  hereby  authorized  and 
required  to  contract  for  provisions,  clothing,  medicines,  for- 
age, fuel,  and  other  supplies  for  the  prison,  for  any  period  of 
time  not  exceeding  one  year;  and  such  contract  shall  be  given 
to  the  lowest  bidder,  at  a  public  letting  thereof,  if  the  price 
bid  is  a  fair  and  reasonable  one.  and  not  greater  than  the  usual 
market  value  and  price.  Each  bid  shall  be  accompanied  by  a 
bond,  in  such  penal  sum  as  said  board  shall  determine,  with 
good  and  sufficient  sureties,  conditioned  for  the  faithful  per- 
formance of  the  terms  of  such  contract.  Notice  of  the  time, 
place,  and  conditions  of  letting  of  each  contract  shall  be  given, 
for  at  least  four  consecutive  weeks,  in  two  daily  newspapers 
in  the  cities  of  San  Francisco  and  Sacramento,  and  also  four 
insertions  in  a  weekly  paper  published  in  the  county  in  which 
the  prison  is  situated.  If  all  the  bids  made  at  such  letting  are 
deemed  unreasonably  high,  the  board  may,  in  their  discretion, 
decline  to  contract,  and  may  again  advertise  for  proposals,  and 
may  so  continue  to  renew  the  advertisement  until  satisfactory 
contracts  may  be  had;    and   in   the   meantime  the   board  may 


757  DISCHARGE  OF  PRISONERS.  1588-1590 

contract  with  any  one  whose  offer  may  be  regarded  just  and 
proper;  but  no  contract  thus  made  shall  be  let  to  run  more 
than  sixty  daj's,  or  shall  in  any  case  extend  beyond  the  pub- 
lic letting.  No  bids  shall  be  accepted,  and  a  contract  entered 
into  in  pursuance  thereof,,  when  such  bid  is  higher  than  any 
other  bid  made  at  the  same  letting  for  the  same  article,  and 
where  a  contract  can  be  had  at  such  lower  bid.  When  two  or 
more  bids  for  the  same  article  are  equal  in  amount,  the  board 
may  select  the  one  which,  all  things  considered,  may  by  them 
be  thought  best  for  the  interests  of  tlie  state,  or  may  divide  the 
contract  between  the  bidders,  as  in  their  discretion  may  seem 
proper  and  right;  provided,  no  contract  shall  be  given,  or  pur- 
chase made,  where  either  of  the  board,  or  any  of  the  officers 
of  the  prison,  is  interested.  All  contracts  or  purchases  made 
in  violation  of  this  section  shall  be  void.  [New  section  approved 
February  24,  1874;  Amendments  1873-4,  p.  467;  in  effect  in 
sixty  days.] 

Prohibiting  certain  employment  of  convict  labor. 

1588.  It  shall  be  unlawful  for  the  state  board  of  prison 
directors,  or  the  state  prison  authorities  at  Folsom,  or  any 
other  state  penal  institution  in  the  state  of  California,  to 
engage  or  employ  any  person  confined  or  employed  ,in  any 
penal  institution  in  said  state,  in  the  manufacturing,  cutting, 
or  dressing  any  curbing,  or  crosswalk  material  for  street  or 
sidewalk  purposes,  monuments,  headstones,  coping,  posts,  or 
steps  suitable  for  use,  or  to  be  used  in  cemetery  work,  cut 
granite  for  building  purposes,  and  dimension  stone  for  cem- 
etery or  building  work,  except  such  cut  and  dimension  stone 
as  may  be  used  in  state  prison  buildings  and  walls,  cut  stone 
for  arches  in  bridges  and  culverts  for  use  on  state  highways, 
county  or  district  roads. 

Any  person  or  persons  violating  the  provisions  of  this  act 
shall  be  deemed  guilty  of  a  misdemeanor  and  punished  accord- 
ingly.     [In    effect    sixty    days    from    March    12,    1901,    p.    272.] 


CHAPTER  II. 
OF   THE   DISCHARGE    OF    PRISONERS    BEFORE    THE    EX- 
PIRATION   OF    THEIR   TERM    OF   SERVICE. 

Sec.    1590.  Credits  for  good  behavior,  how  aud  when  allowed. 

1591.  Credits,    when   forfeited. 

1592.  Board  to  make  rules  and  regulations. 

1593.  Board,   when  to  report  credits  to  governor. 

1594.  Further  i>owers  of  the  board. 

1595.  Recommendations  for  pardon  reported  to  legislature. 

Credits  for  good   behavior,  how  and  when  allowed. 

1590.  The  board  of  state  prison  directors  of  this  state  shall 
require  of  every  able-bodied  convict  confined  in  said  prison  as 
many  hours  of  faithful  labor,  in  each  and  every  day  during  his 
term  of  imprisonment,  as  shall  be  prescribed  by  the  rules  and 
regulations  of  the  prison,  and  every  convict  faithfully  per- 
forming such  labor,  and  being  in  all  respects  obedient  to  the 
rules  and  regulations  of  the  prison,  or  if  unable  to  work,  yet 
faithful  and  obedient,  shall  be  allowed  from  his  term,  instead 
and    in   lieu    of   the    commutation    heretofore   allowed    by   law, 


1591-1592  PENAL  CODE.  758 

a  deduction  of  two  months  in  each  of  the  first  two  years,  four 
months  in  each  of  the  next  two  years,  and  five  months  In  each  of 
the  remaining  years  of  said  term;  provided,  that  any  such 
convict  who  shall  commit  an  assault  upon  his  keeper,  or  any 
foreman,  officer,  or  convict,  or  otherwise  endanger  life,  or  by 
any  flagrant  disregard  of  the  rules  of  the  prison,  or  any  mis- 
demeanor whatever,  shall  forfeit  all  deductions  of  time  earned 
by  him  for  good  conduct  before  the  commission  of  such  offense; 
such  forfeiture,  however,  shall  only  be  made  by  the  board  of 
directors,  after  due  proof  of  the  offense,  and  notice  to  the 
offender;  nor  shall  such  forfeiture  be  imposed  when  a  party 
has  violated  any  rule  or  rules  without  violence  or  evil  intent, 
of  which  the  directors  shall  be  the  sole  judges.  The  name  of 
no  convict  who  attempts  to  escape,  after  the  passage  of  this 
act,  shall  be  sent  by  the  state  prison  officials  to  the  governor 
for  the  commutation  herein  provided;  provided  further,  that 
of  those  prisoners  entitled  to  their  discharge  at  the  date  of  the 
passage  of  this  act,  by  virtue  of  the  provisions  hereof,  not 
more  than  one  shall  be  discharged  on  any  one  day,  and  the 
discharges  shall  be  made  in  the  order  in  which  they  would  have 
occurred  if  this  act  had  been  passed  April,  eighteen  hundred 
and  sixty-four.  [Amendment  approved  March  29,  1878;  Amend- 
ments  1877-78,  p.   124.     In  effect  April  15,  1878.] 

Credits,  when  forfeited. 

1591.  The  rule  of  commutation  fixed  in  the  preceding  sec- 
tion is  to  be  so  applied  as  that  any  refusal  to  labor,  a  breach 
of  the  prison  rules,  or  other  misconduct,  works  a  forfeiture  of 
the  credits  of  time  thus  earned,  or  such  part  of  it  as  the  war- 
den or  resident  director  may  determine,  subject  to  confirma- 
tion or  rejection  by  the  board  of  directors,  on  appeal  by  the 
prisoner.  Unless  the  board,  on  appeal,  at  its  first  session 
thereafter,  rejects  the  forfeiture,  it  is  confirmed.  Credits  once 
forfeited  cannot  be  restored  except  by  the  board,  and  then 
only  when  circumstances  render  such  restoration  urgently 
necessary.  The  above  provisions  apply  to  all  persons  now 
Imprisoned  In  the  state  prison,  and  the  commutation  must  be 
computed  from  April  fourth,  A.  D.,  eighteen  hundred  and  sixty- 
four. 

Board  to   make   rules  and   regulations. 

1592.  The  board  may  make  such  rules  and  regulations  as 
may  be  necessary  to  carry  into  effect  the  provisions  of  this 
chapter,  and  may  declare  and  establish  a  proper  scale  or  rate 
of  debits  and  credits  for  good  conduct  or  misconduct,  which 
shall  accompany  the  rules  of  discipline  of  the  prison,  and,  in  a 
book  to  be  kept  for  that  purpose,  must  cause  to  be  entered  up, 
at  the  end  of  each  month,  the  result  of  credits  to  which  each 
prisoner  may  be  entitled,  and  on  the  first  day  of  each  month 
announce  such  result  to  the  prisoners.  Every  contractor 
employing  convict  labor  must  keep  a  similar  record  of  the 
conduct  of  all  prisoners  employed  by  him,  and  submit  the  same 
for  inspection  to  the  board  at  the  end  of  each  month,  who  must 
take  the  same  into  consideration  in  making  up  their  decision. 


759  DISCHARGE  OF  PRISONERS— COUNTY  JAILS.       1593-1597 

Board,  when  to  report  credits  to  governor. 

1593.  At  the  end  of  every  month  the  board  must  report  to 
the  governor  of  this  state  the  names  of  all  prisoners  whose 
terms  of  imprisonment  are  about  to  expire,  by  reason  of  the 
benefits  of  this  chapter,  giving  in  such  report  the  terms  of 
their  sentences,  the  date  of  imprisonment,  the  amount  of  total 
credits  to  the  date  of  such  report,  and  the  date  when  their 
service  would  expire  by  limitation  of  sentence.  The  governor, 
at  the  expiration  of  the  term  for  which  any  prisoner  has  been 
sentenced,  less  the  number  of  days  allowed  and  credited  to 
him,  must  order  the  release  of  such  prisoner,  by  an  order  under 
his  hand  addressed  to  the  warden  of  the  prison,  in  such  mode 
and  form  as  he  may  deem:  proper,  and  with  or  without  restora- 
tion to  citizenship,  according  in  his  discretion. 

Further  powers  of  the  board. 

1594.  The  board  must  grant  and  enter  up  in  favor  of  such 
prisoners  whom  they  may  deem  worthy,  by  reason  of  good  con- 
duct and  industry,  during  the  twelve  months  prior  to  the  fourth 
day  of  April,  A.  D.  eighteen  hundred  and  sixty-four,  the  credits 
authorized  by  section  1590,  not  exceeding  thirty  days,  the  same 
to  be  deducted  from  the  term  of  their  imprisonment. 

Recommendations   for   pardon    reported   to   legislature. 

1595.  The  board  must  report  to  the  legislature,  at  each  reg- 
ular session,  the  names  of  any  persons  confined  in  the  state 
prison  who,  in  their  judgment,  ought  to  be  pardoned  and  set  at 
liberty  on  account  of  good  conduct  or  unusual  terms  of  sen- 
tence, or  any  other  cause  which,  in  their  opinion,  should  entitle 
such  prisoners  to  a  pardon.  Whenever  the  legislature,  by  a 
majoritj'  of  both  houses,  recommend  to  the  governor  that  any 
or  all  of  the  persons  reported  be  pardoned  by  him,  he  may 
thereupon  pardon  such  prisoners. 

TITLE  II. 
OF  COUNTY  JAILS. 

Sec.    1.597.  County  jails,  by  whom  kept  and  for  what  use. 

1.598.  Rooms   required    in   county   jails. 

1599.  Prisoners  to  be  classified. 

1600.  Prisoners  committed   must  be  actually  confined. 

1601.  Sheriff  to  receive  prisoners   committed   by   courts. 

1602.  SheriEf  answerable  for  safe-keeping  of  such  prisoners. 

1603.  ,When  jail  of  a  contiguous  count.r  may  be  used. 

1604.  Keeper  of  jail  in  contiguous  county  to  receive  prisoner*. 

1605.  When  jail  in  contiguous  county  to  cease  to  be  used. 

1606.  Prisoners  ta  be  returned  to  proper  county. 

1607.  Prisoners  ma.v  be  removed  in  case  of  fire. 

1608.  Prisoners  may   be   removed   in   case  of  pestilence. 
,1609.  Papers!  served  on  jailer  for  prisoner. 

1610.  Guard   for   jail. 

1611.  Sheriff  to  receive  all  persons  duly  committed. 

1612.  Prisoners  on  civil  process,  when  not  to  be  received. 

1613.  Prisoners   may  be  required  to  labor. 

1614.  Rules  and   regulations  for  the  performance  of  labor. 

County  jails,  by  whom  kept  and  for  what  use. 

1597.  The  common  jails  in  the  several  counties  of  this  state 
are  kept  by  the  sheriffs  of  the  counties  in  whlcli  they  are 
respectively  situated,  and  are  used  as  follows: 

1.  For  the  detention  of  persons  committed  in  order  to  secure 
their  attendance  as  witnesses  in  criminal  cases; 


1598-1603  PENAL  CODE.  760 

2.  For  the  detention  of  persons  charged  with  crime  and  com- 
mitted for  trial; 

3.  For  the  confinement  of  persons  committed  for  contempt, 
or  upon  civil  process,  or  by  other  authority  of  law; 

4.  For  the  confinement  of  persons  sentenced  to  imprisonment 
therein  upon  a  conviction  for  crime. 

78  Cal  306. 

Rooms  required  in  county  jails. 

1598.  Each  county  jail  must  contain  a  sufficient  number  of 
rooms  to  allow  all  persons  belonging  to  either  one  of  the  fol- 
lowing classes  to  be  confined  separately  and  distinctly  from 
persons  belonging  to  either  of  the  other  classes: 

1.  Persons  committed  on  criminal  process  and  detained  for 
trial ; 

2.  Persons  already  convicted  of  crime  and  held  under  .sen- 
tence ; 

3.  Persons  detained  as  witnesses  or  held  under  civil  process, 
or  under  an  order  imposing  punishment  for  a  contempt; 

4.  Males  separately  from  females. 

Prisoners  to  be  classified. 

1599.  Persons  committed  on  criminal  process  and  detained 
for  trial,  persons  convicted  and  under  sentence,  and  persons 
committed  upon  civil  process,  must  not  be  kept  or  put  in  the 
same  room,  nor  shall  male  and  female  prisoners  (except  hus- 
band and  wife)  be  kept  or  put  in  the  same  room. 

Prisoners  committed  must  be  actually  confined. 

1600.  A  prisoner  committed  to  the  county  jail  for  trial  or 
for  examination,  or  upon  conviction  for  a  public  offense,  must 
be  actually  confined  in  the  jail  until  he  is  legally  discharged; 
and  if  he  is  permitted  to  go  at  large  out  of  the  jail,  except  by 
virtue  of  a  legal  order  or  process,  it  is  an  escape. 

97  Cal.  242. 

Sheriff  to  receive  prisoners  committed  by  courts. 

1601.  The  sheriff  must  receive,  and  keep  in  the  county  jail, 
any  prisoner  committed  thereto  by  process  or  order  issued  under 
the  authority  of  the  United  States,  until  he  is  discharged  accord- 
ing to  law,  as  if  he  had  been  committed  under  process  issued 
under  the  authority  of  this  state;  provision  being  made  by  the 
United  States  for  the  support  of  such  prisoner. 

92  Cal.  422. 

Sheriff  answerable  for  safe-keeping   of  such  prisoners. 

1602.  A  sheriff,  to  whose  custody  a  prisoner  is  committed, 
as  provided  in  the  last  section,  is  answerable  for  his  safe- 
keeping in  the  courts  of  the  United  States,  according  to  the 
laws  thereof. 

When  jail  of  a  contiguous  county  may  be  used. 

1603.  When  there  is  no  jail  in  the  county,  or  when  the  jail 
becomes  unfit  or  unsafe  for  the  confinement  of  prisoners,  the 
county  judge  may,  by  a  written  appointment  filed  with  the 
county  clerk,  designate  the  jail  of  a  contiguous  county  for  the 
confinement  of  the  prisoners  of  his  county,  or  of  any  of  them, 
and  may  at  any  time  modify  or  annul  the  appointment. 


761  COUNTY  JAILS.  1604-1610 

Keeper  of  jail  in  contiguous  county  to  receive  prisoners. 

1604.  A  copy  of  the  appointment,  certified  by  the  county  clerk, 
must  be  served  on  the  sheriff  or  keeper  of  the  jail  designated, 
who  must  receive  into  his  jail  all  prisoners  authorized  to  be 
confined  therein,  pursuant  to  the  last  section,  and  who  is  respon- 
sible for  the  safe-keeping  of  the  persons  so  committed,  in  the 
same  manner  and  to  the  same  extent  as  if  he  was  sheriff  of 
the  county  for  whose  use  his  jail  is  designated,  and  with  respect 
to  the  persons  so  committed  he  is  deemed  the  sheriff  of  the 
county  from  which  they  were  removed. 

When  jail   in  contiguous  county  to  cease  to  be  used. 

1605.  When  a  jail  is  erected  in  the  county  for  the  use  of 
which  the  designation  was  made,  or  its  jail  is  rendered  fit  and 
safe  for  the  confinement  of  prisoners,  the  county  judge  of  that 
county  must,  by  a  written  revocation,  filed  with  the  county 
clerk  thereof,  declare  that  the  necessity  for  the  designation  has 
ceased,  and  that  it  is  revoked. 

Prisoners  to  be  returned  to  proper  county. 

1606.  The  county  clerk  must  immediately  serve  a  copy  of 
the  revocation  upon  the  sheriff  of  the  county,  who  must  there- 
upon remove  the  prisoners  to  the  jail  of  the  county  from  which 
the  removal  was  had. 

Prisoners  may  be  removed  in  case  of  fire. 

1607.  When  a  county  jail  or  a  building  contiguous  to  it  is 
on  fire,  and  there  is  reason  to  apprehend  that  the  prisoners 
may  be  injured  or  endangered,  the  sheriff  or  jailer  must  remove 
them  to  a  safe  and  convenient  place,  and  there  confine  them 
as  long  as  it  may  be  necessary  to  avoid  the  danger. 

Prisoners   may   be   removed    in   case   of   pestilence. 

1608.  When  a  pestilence  or  contagious  disease  breaks  out  In 
or  near  a  jail,  and  the  physican  thereof  certifies  that  it  is  liable 
to  endanger  the  health  of  the  prisoners,  the  county  judge  may, 
by  a  written  appointment,  designate  a  safe  and  convenient 
place  in  the  county,  or  the  jail  in  a  contiguous  county,  as  the 
place  of  their  confinement.  The  appointment  must  be  filed  in 
the  office  of  the  county  clerk,  and  authorize  the  sheriff  to 
remove  the  prisoners  to  the  place  or  jail  designated,  and  there 
confine  them  until  they  can  be  safely  returned  to  the  jail  from 
^hich  they  were  taken. 

Papers   served    on   jailer   for   prisoner. 

1609.  A  sheriff  or  jailer  upon  whom  a  paper  in  a  judicial 
proceeding,  directed  to  a  prisoner  in  his  custody,  is  served,  must 
forthwith  deliver  it  to  the  prisoner,  with  a  note  thereon  of  the 
time  of  its  service.  For  a  neglect  to  do  so  he  is  liable  to  the 
prisoner  for  all  damages  occasioned  thereby. 

Guard  for  jail. 

1610.  The  sheriff,  when  necessary,  may,  with  the  assent  in 
writing  of  the  county  judge,  or  in  a  city,  of  the  mayor  thereof, 
employ  a  temporary  guard  for  the  protection  of  the  county  jail, 
or  for  the  safe-keeping  of  prisoners,  the  expenses  of  which  are 
a  county  charge. 


1611-1614  PENAL  CODE.  762 

Sheriff  to  receive  all  persons  duly  committed. 

1611.  The  sheriff  must  receive  all  persons  committed  to  jail 
by  competent  authority,  and  provide  them  with  necessary  food, 
clothing,  and  bedding,  for  which  he  shall  be  allowed  a  reason- 
able compensation,  to  be  determined  by  the  board  of  super- 
visors, and,  except  as  provided  in  the  next  section,  to  be  paid 
out  of  the  county  treasury. 

67  Cal.  335;    102  Cal.    430. 

Prisoners  on  civil  process,  when  not  to  be  received. 

1612  Whenever  a  person  is  committed  upon  process  In  a 
civil  action  or  proceeding,  except  when  the  people  of  this  state 
are  a  party  thereto,  the  sheriff  is  not  bound  to  receive  such 
person,  unless  security  is  given  on  the  part  of  the  party  at 
whose  instance  the  process  is  issued,  by  deposit  of  money, 
to  meet  the  expenses  for  him  of  necessary  food,  clothing,  and 
bedding,  or  to  detain  such  person  any  longer  than  these 
expenses  are  provided  for.  This  section  does  not  apply  to 
cases  where  a  party  is  committed  as  a  punishment  for  dis- 
obedience to  the  mandates,  process,  writs,  or  orders  of  court. 

Prisoners  may  be  required  to  labor. 

1613.  Persons  confined  in  the  county  jail  under  a  judgment 
of  imprisonment  rendered  in  a  criminal  action  or  proceeding, 
may  be  required  by  an  order  of  the  board  of  supervisors  to  per- 
form labor  on  the  public  works  or  ways  in  the  county. 

97  Cal.  243. 

Rules  and  regulations  for  the  performance  of  labor. 

1614.  The  board  of  supervisors  making  such  order  may  pre- 
scribe and  enforce  the  rules  and  regulations  under  which  such 
labor  Is  to  be  performed;  and  provide  clothing  of  such  a  dis- 
tinctive character  for  said  prisoners  as  such  board,  in  its  dis- 
cretion, may  deem  proper.  For  each  month  in  which  the  pris- 
oner appears,  by  the  record,  to  have  given  a  cheerful  and  will- 
ing obedience  to  the  rules  and  regulations,  and  that  his  con- 
duct is  reported  by  the  officer  in  charge  of  the  jail  to  be  posi- 
tively good,  five  days  shall,  with  the  consent  of  the  board  of 
supervisors,  be  deducted  from  his  term  of  sentence.  [Amend- 
ment, approved  March  23,   1893;    Stats.   1893,  p.   298.] 

97  Cal.  243. 


,  INDEX. 

Page.   Sec. 
Abandonment  by  parent  of  child 271 

Abduction   71 

a  taking  from  legal  custodian  material  to  the 

offense    , 71 

consent  to  taking  no  defense  71 

defined    26& 

effect  of  previous  unchastity 72 

evidence  72 

for  prostitution    267 

form   of  indictment    73 

ignorance  of  age  no  defense  72 

indictment    73 

jurisdiction  of  " 46      784 

legal   custodian  defined    72 

penalty  for   73 

Abortion    74 

defined    .- 274 

evidence   on    1108 

form  for  indictment  75 

penalty  for 74 

submission   to    275 

Absence  from  state  must  be  alleged  to  prevent  run- 
ning of  statute   47 

prevents  running  of  statute  of  limitations 47 

Accessory,  accomplice  is  an  363 

and  principal  distinction  between  abrogated...  971 

defined    42 

how  punished   ■ 33 

jurisdiction  of   791 

jurisdiction  over,  county  of  his  offense 47 

trial  of,  when   43 

where  to  be  tried 972 

who  is  an   .  32 

withholding  knowledge,  does  not  constitute 43 

Accomplice,  conviction  cannot  be  had  on  evidence  of.  1111 

discharge  of  operates  as  bar  61 

evidence  of 363 

instruction  on  corroboration  of   420 

is   an  accessory    363 

testimony  of  must  be  corroborated 364 

see  Accessory. 

Accounts,  falsification  of  424 

Acid,  see  Throwing  Vitrei. 

Acknowledgment,  fake  personation  in   52^ 


764 


INDEX. 


Acquittal,  discharge  of  defendant  to  be  a  witness  acts 

as    1101 

in  foreign  country,  effect  of 656 

proceedings  on  for  insanity 1167 

Act  necessary  to  constitute  crime 33 

Action,  wlien  may  be  dismissed    1382 

Actual   bias,  cliallenge  to  juror  for 1073 

see  Bias. 

Administrative  officer,  see  Officer. 

Administrator,  embezzlement  by  506 

Admission  of  fact  need  not  be  voluntary 370 

Adulteration  of  candy 402J 

of  foods,  etc 382 

Adultery    76 

form  for  indictment   76 

penalty  for    76 

Advertising  to  produce  miscarriage  317 

Advertisement,  of  attorneys  for  divorces 159i 

putting  on  land  of  another  602 

see  Trespasses. 

Affidavit,  by  deputy   283 

entitling  of  before  justice  of  the  peace  1460 

for  change  of  venue   325 

how  entitled   • 1401 

how  entitled   1563 

of  bias  of  judge  not  contempt  112 

Agent,  embezzlement  by 133       506 

when  guilty  of  embezzlement   508 

Aiding  officer,  persons  justified  in  698 

Aiding  and  abetting  both  necessary  to  principal 42 

in    misdemeanor    659 

without  knowledge  not  criminal  42 

Alibi,  evidence  of  391 

Alimony,  disobedience  of  order  to  pay 112 

Altering,  draft  of  bill  of  legislature 83 

enrolled   bill   of   legislature    84 

Alternate  jurors,  when  allowed   1089 

Ambiguity,  fatal  to  information 311 

Amending    verdict    ^^ 

Amendment,  motion  for  new  trial  after  judgment  can- 
not be   ^^"^ 

Ammunition,  selling  to  Indians  398 

Animals,   administering   poison   to    596 

altering  brands  on   357 

death  from  mischievous   399 

false   registration   of    537i 

for  propagation,  not  prohibited 6261 

having  glanders,  to  be  killed  402i 

killing,  maiming  or  torturing   597 

putting  dead  in  street,  etc 374 

with  glanders,  using   402 


INDBX.  T65- 

■  ,  ,  Page.   Sec. 

Answer,   to   arraignment,   defendant  allowed   time  to 

make    99Q 

Antelope,  killing  of  female  prohibited 626e 

Appeal    460 

argument  of   1254 

by  defendant    461     1243 

by  defendant,  grounds  for ltS7 

by  defendant,   what  reviewed   on 1259 

by  people,  effect  of  1J42 

by  people,  grounds  for  1238 

by  people  when    461 

by  whom  taken  1235 

conflicting  evidence  not  reviewed  on 472 

defendant  need  not  appear  on  1255 

dismissal,  grounds  of    1248 

dismissal  for  want  of  return   1249 

duty  of  clerk  on  1246 

duty  of  clerk  to  print  transcript  on 463 

effect   of    463 

effect  of  aflirmance  of  judgment  1263 

effect  of  granting  certificate  of  probable  cause..  1245 

escape  pending   460 

from   what  orders  allowed 461 

jurisdiction    on    460 

how   taken    1240 

judgment  cannot  be  reversed  without  argument  1253 

judgment  on,  how  entered   1264 

judgment  on  without  regard  to  technical  errors  1258 
plea  of  once   in  jeopardy  cannot  be  made  be- 
cause of  new  trial  granted  on 62 

power  of  the  court  on  1260 

presumption   against   error   on    469 

presumption  in  favor  of  record  on 462 

order  on  motion  for  arrest  of  judgment  not  ap- 

pea,lable    459 

record   on    462 

review  of  error  favorable  to  defendant 476 

review  of  evidence  on   471 

service  of  notice  of  1241 

sufiiciency  of  evidence  when  reviewable  on....  473 

to  Superior  Court  affect  of  dismissal  of 1470 

to  Superior  Court,  statement  on 1468 

to  Superior  Court,  when  allowed 1466 

taken  on  questions  of  law  alone  1235 

two  cannot  bs  taken  on  one  notice  462 

unauthorized  release  pending  is  escape 450 

when  defendant  discharged  on  reversal 1262 

when  dismissed   463 

when  from  order  setting  aside  information 315 

when  from  order  sustaining  demurrer   316 

when  heard  and  determined 1252" 

when  ruling  on  challenge  reviewable  on 336 

when  taken   1239 

who  may  admit  to  bail  on  1291 

will  not  lie  from  habeas  corpus  481 

"Without  consent  of  defendant  460 


766  INDEX. 

Page.  Sec. 
Appearance,  right  of  defendant  to  personal,  In  trial..     52 

Appellant,  party  appealing  is   1236 

Appointments,  buying  to  office   73 

of  deputy,  taking  reward  for  74 

Appraisers  of  estate  accepting  reward   653i 

Apprentices,   encouraging  to  desert  or  harboring....  646 

Arbitrator,  bribery  of  92 

Argument  on  appeal   1254 

of  counsel,  number 1095 

right  of  counsel  to  make   56 

Armed  force,  to  obey  orders  of  whom 730 

Arms,  who  may  parade  with  734 

Arms  of  state,  selling  443 

unlawfully  retained    442 

Arraignment     313 

consists  in  what  313 

defendant  allowed  time  to  answer yyO 

defendant  in  custody  to  be  brought  into  court  on  979 

defendant  when  must  be  present  at  977 

duty  of  court  to  defendant  on. 313 

for   judgment    1200 

how  made   988 

of  defendant,  where  had  976 

proceedings   on,   where   defendant   not   indicted 

by  true  name  989 

right  of  defendant  to  counsel  on 987 

when  defendant  must  be  present 57 

Arrest    290 

by  peace  officer    836 

by  private  person  837 

by  telegraph   850 

by  whom  made  834 

defined    834 

duty  of  citizen  to  make   184,  291 

duty  of  person  making   847 

for  felony  without  warrant   836 

for  offense  in  presence  of  officer  836 

force  to  be  used  in 843 

form  for  warrant  of  289 

how  made    290  835 

informing  defendant  of  intention  to  make  when  841 

of  defendant  on  bench  warrant  1199 

of  defendant  on  recommitment  1312 

officer  making  without  authority  146 

officer  must  follow  warrant  848 

officer  need  not  disclose  official  character 291 

officer  refusing  to  make   142 

officer  taking  fee  for   144 

of  persons  engaged  in  riot   • 727 

on  order  of  magistrate 838 

person  making  may  order  assistance  839 

probable  cause  for 290 

proceedings    on 485 


INDEX.  767 

paorp       Sec 

Arrest,  reasonable  cause  for   836 

refusing  to  aid  officer  in   150 

resisting,  Itilling  in  when  murder  177 

right  of  officer  in  malting  291 

right  to  make  without  warrant   291 

taking  weapons  from  person  846 

warrant  of,  when  issued   289 

what  constitutes  reasonable  ground  for 184 

what  constitutes  resisting    183 

when  an  officer  justified  in  killing  in  making..  183 
when   doors   and    windows    may   be  broken   in 

making  < 844 

845 

when  may  be  made  840 

when  warrant  may  be  shown   842 

without  warrant,  duty  of  officer  in  849 

Arrest  of  judgment,  effect  of   458 

by  justice  of  the  peace   1452 

exception  to  granting  or  refusing  motion  to....  1172 

for  variance  in  proof  of  venue   51 

for  what  defects  granted    458 

grounds  for 1185 

grounds  for  must  be  pointed  out   458 

motion   for    458 

order  on  motion  not  appealable  459 

see  Judgment. 

Art,  injuring  works  of  622 

Arson     78 

allegation   of  ownership    81 

building   defined    78       448 

burning  defined   451 

burning  property  not  subject  of  600 

defined    447 

degrees  of   453 

"     80      454 

description  of  building  in  indictment 81 

evidence    82 

form  for  indictment   82 

indictment   for    80 

inhabited  building  defined   449 

intent,  how  alleged  81 

intent  to  destroy  essential  '. 80 

night-time  defined   450 

ownership  defined    452 

ownership  of  building 78 

penalty   for    82       455 

to  defraud  insurer   79 

venue,  how  described  in  indictment  81 

what  constitutes  burning   79 

Articles  of  impeachment,  how  prepared  788 

to  be  delivered  to  whom   739 

Asportation   essential  to  larceny 216 

how  alleged  in  larcen-y   224 

Assault    84 

abandonment  of  attempt  no  defense   86 

attempt  essential  to   85 


768 


INDEX. 


Page.   Sec. 

Assault,  battery  no  part  of 86 

by    officers    149 

by  prisoner  under  life  sentence 246 

defined    24(> 

form   for   indictment    89 

included  in  battery  87 

in  court,  security  for  710 

instructions   on    434 

intent    84 

jurisdiction  of  Superior  Court  49 

penalty 89       241 

possession  of  deadly  weapon  with  intent  to. . . .  467 

present  ability   85 

to   commit   felony     except     assault  to   commit 

murder    221 

verdict    88 

with   caustic   chemicals    244 

with  deadly  weapon,  indictment  for  87 

with  intent  to  commit  felony   220 

Assault  to  commit  rape   255 

instructions  on 436 

punishment  for   451 

Assault  to  murder 90       217 

evidence    91 

form  for  indictment   93 

indictment  for   92 

instructions   on    433 

intent  a  question  of  fact  91 

intent  to  take  life  essential  to   90 

verdict    92 

Assault  with  deadly  weapon 87       245 

instructions  on    433 

Assessment,  making  false  statement  in  430' 

Assessor,  refusing  to  list  property  to 429 

Attempt   defined    34 

essential  to  assault   85 

essential  to  crime 34 

failure   of,    or   abandonment    does   not   change 

character    35 

Illustrations  of 34 

to  commit  crime  unsuccessful,  penalty  for. . . .  66& 

to  commit  crime,  when  punishable  663 

how  punished   ®64 

to  commit  incest   210 

to  kill,  punishment  for  216 

when  jury  may  convict  of  115^ 

Attendance  of  witnesses,  compelling   357 

Attorneys    acting   on   opposite    side   from   partner   In 

a    case    ^^^ 

163 

advertising   for    divorces    159i 

buying  demands    161 

embezzlement  by   506 

misconduct  of   160> 

see  Counsel. 


INDEX.  YBB* 

•    Pft«e.   Sec. 

Auctioneer,  acting  unlawfully  as   436 

Badges  of  secret  society,  unauthorized  wearing  of . . . .  543i 

Bail,  admission  of  fugitive  to  1552 

admission  to  by  justice  of  peace 1458 

admission  to  defined    1268 

admission  to  in  misdemeanors   829 

after  conviction,  when  granted 68     1272 

after  indictment,  form  of  undertaking 1287 

amount  of   68 

before  conviction    1271 

by  whom  taken  when  defendant  ordered  recom- 
mitted       1315 

defendant  need  not  sign  bond   67 

defendant  to  be  admitted  on  postponement....  862 

deposit  instead  of,  after  giving 1296 

deposit  instead  of  may  be  mg^e 1295- 

effect  of  allowance  of   1281^ 

exonerated  by    commitment    of    defendant  for 

insanity    1371 

exonerated,  when  defendant  discharged 1116 

failure  to  give  824 

false  personation  of   150      52^ 

for  what  purposes  taken  1273 

forfeiture  of   1195 

form  of  undertaking  on  1278 

habeas  corpus  to  admit  to  482 

increase  or  reduction  of  1289 

increasing    985  > 

Indorsement  on  bond  of  approval  of  sureties...  67 

judge  may  admit  to  on  habeas  corpus 1491 

justification   on    1280 

nature  of 1273 

on  appeal,  condition  of  undertaking 1292 

on  appeal,  qualifications  of  1292 

on  appeal,  who  may  admit  to  1291 

on  habeas  corpus   1286 

order   admitting    293       875- 

order  admitting  to  not  essential  to  commitment  286 

presumption  of  guilt  on  application  for 66 

proceedings  in  giving  in  another  county 984 

proceedings  on  taking   823 

qualifications  of  on  recommitment 1317 

qualifications  on    1279  ■ 

right  of  defendant  to    52,  66 

sections  of  the  code  applicable  to  qualification  1288 

surrender  of  defendant  by  1301 

taking  defined    1269' 

taking  in  custody  after  admission  to  67 

undertaking  of,  how  forfeited    1305 

what  magistrates  may  admit  to  1277 

when   allowed    1270 

when  defendant  arrested  in  other  county   822 

when    matter    of     discretion     district    attorney 

must  be  notified  1274. 


CRIMES--49 


770  INDEX. 

Page.   Sec. 

Ball  when  taken  on  recommitment,  form  of 1316 

tvhere  the  offense  is  capital   1285 

^-         where  the  offense  is  not  capital 1284 

xvho  authorized  to  admit  to  67 

'Bailee,  allegation  of  in  indictment  for  larceny 225 

embezzlement  by    507 

larceny   by 218 

Ballast,  throwing  overboard  in  harbor 613 

Ballots,  see  Election. 

Bank,  officer  of  insolvent  receiving  deposit 562 

embezzlement  by    506 

Bar,  order  setting  aside  information  not 999 

Barber  shops,  keeping  open  on  Sunday  afternoon 310i 

Barratry  defined    158 

how  proved   * 159 

Battery    86 

defined   242 

no  part  of  assault  86 

penalty  for 243 

Beacon,    removal    of    609 

Bench  warrant,  arrest  of  defendant  on 1199 

by  whom  and  how  issued  ~ 934 

by  whom  and  when  issued  980 

directions  in   982 

form   of    935 

981 

" 1197 

how  served  983 

936 

1198 

issue  for  defendant  not  appearing  for  judgment  1195 

issues  when    1196 

on    presentment    933 

Betting  on  election  60 

Bias,  challenge  for  actual  336 

challenge   for  implied    339 

of  judge,  change  of  venue  for  327 

of  people,  change  of  venue  for  325 

Bigamy    94 

defined    281 

defense  to   282 

evidence  on  trial  for 1106 

form  for  indictment   96 

Indictment  for  95 

jurisdiction   of    46,    96      785 

marriage  after  absence  of  spo«se  when  not....  282 

no  presumption  of  continuance  of  life 94 

penalty  for   96       283 

proof  of  former  marriage   95 

Bill  of  exceptions  defined  464 

defendant  entitled  to  stay  until  settled 468 

how   prepared    464 

how  proved  in  Supreme  Court 465 


INDEX,  771 

Bill  of  exceptions,  how  settled  467 

judge  may  amend  proposed   467 

presumption  as  to  evidence  in   466 

presumption  in  favor  of  467 

same  in  form  as  statement 466.  468 

should  be  in  narrative  form 466 

time  of  settlement    467 

unauthenticated  papers  no  part  of 465 

what  to  contain    1 175 

when   necessary    464 

when  settled  and  signed   1171 

written  charges  need  not  be  embodied  in 1176 

Bill  of  lading,  destroying  355 

false  making  of   541 

issuing  fictitious 577 

when  punishable  579 

Bill  posting,  see  Trespassing. 

Birds,  for  propagation,  not  prohibited 626? 

killing  or  trapping  in  cemetery 598 

Birth,  false  pretenses  concerning  156 

Black  bass,  closed  season  for  - 628 

Board  of  examiners,  neglect  of  duty  by  member  of . . . .  441 

Board  of  state  prison  must  keep  accounts,  etc 1580 

must  receive  federal   prisoners    1581 

Board  of  Supervisors,  bribery  of  165 

Bobwhite,  killing  of  prohibited  626c 

Bond,  defendant  need  not  sign  «n  bail 67 

forgery    of    470 

Books,  of  library,  wilful  detention  of 623i 

Boundaries,  destroying  marks  of   602 

Brands,  altering    357 

altering  on  domestic  animals   357i 

Bribe,  giving  or  offering -to  officer  67 

meaning  of   7 

officer   asking   or   receiving 68 

witness  offering  to  receive   138 

Bribery     97 

board   of  supervisors    165 

by  members  of  the  legislature  88 

common    council 165 

evidence    98 

forms    for    indictment    99 

indictment    98 

judicial  officer  or  referee  asking  for  bribe 93 

judges,  jurors   and   referee    92 

members  of  legislature   85 

86 

members   of   legislative   caucuses 57 

of   telegraph   operator    641 

of   witness 137 

penalty   for    • 99 

Bridges,  injury  to  or  destroying   607 

malicious  injury  to  railroad    587 

maintaining  without  authority   386 


772  iNDisx. 

Page.  Sec. 

Broker,  embezzlement  by   506 

Building    defined    44S 

destroying  or  injuring  by  means  of  gunpowder  601 

how  described  in  indictment  for  arson 81 

letting  for  purposes  of  lottery 326 

subject   of   arson    78 

what   constitutes   a  burning    79 

Burden   of   proof 388 

when    shifts    1105 

Burial,  omitting  to  make 293 

who  charged  with  duty  of   292 

Buoys,  mooring  vessels  to  614 

removing    60^ 

Burglary    defined    101       459 

degrees   of    46(> 

commitment  to  Whittier  School  without  jury..   450 

entry  essential  to 101 

evidence ♦. 103 

form  for  indictment   106 

indictment    for    103 

intent   essential   to    101 

larceny  not  included  in  223 

night-time    defined     103       46? 

penalty  for    105      461 

possession  of  instruments  for 466 

venue    102 

verdict    105 

Burning    defined    451 

rafts    608 

Calendar,  duty  of  clerk  to  prepare  1047 

order  of  disposing  of  issues  on 104& 

Canal,  injuries  to   607 

Candy,    adulterating    402i 

Capital  cases,  bail  in  1285 

Car,  jurisdiction  of  crime  on   46 

Caricatures,   publishing  of    258 

Carrier,  embezzlement  by  SOi 

Cars,  putting  passenger  cars  in  front  of  freight  cars.  392 

Cattle,  false  registration  of   537^ 

Caucus,  bribery  of  members  of  57 

Caveat  emptor,  not  applicable  to  false  pretenses....   154 
Cemetery,   destroying  or  removing  anything  pertain- 
ing   to    296 

killing  birds,   etc.,   in    598 

see  Sepulcher. 

Certificate  of  probable  cause   468 

by  whom  granted   469 

effect    of    granting    469 

necessary  to  stay  judgment    1243^ 

wnen   granted    46S 

when    necessary    468 


INDEX.  773 

Page.   Sec. 
Certificate  of  8tocl<,  forgery  of   470 

Challenge,  defendants  jointly  tried   must  join  in 331. 

effect  of  to  individual  juror 90ft 

effect  of  to  panel  of  grand  jury   899 

evidence  upon    ; 335 

for  actual  bias    336 

for   implied   bias    339 

grand  juror  acting  after  allowed  to  164 

manner  of  taking  and  trying  897 

peremptory    3J3 

right   to    331 

to  grand  jury   298 

to  grand  jury,  decision  on   898 

to  grand  jury,  only  objection  to   901 

to  Individual  grand  juror   894 

896 

to  individual  jurors    1067 

to  jury,  defendants  jointly  indicted 1056 

to  jury,  exception  to  order  on 1170 

to  jury,  kinds  of   1055 

to    panel 331 

to  panel  defined   1058 

to  panel,  grounds  for  1059 

to  panel  of  grand  jury  895 

when  ruling  on  reviewable   336 

when  taken   334 

see  Juror. 

Change  of  venue    325 

see  Venue. 

Charges  of  court  in  writing  need  not  be  excepted  to  1176 

Chaste  character,  no  presumption  of  in  seduction 269 

Chattels,  removal  of  mortgage   537 

Cheat,  see  False  Personation  and  False  Pretenses. 

Check,   forgery   of    470 

Child  desertion  by  parent  271 

disposing  of  for  mendicant  business   272 

lascivious   conduct  towards    288 

neglect  to  provide  for   270 

see  Infant. 

Child    stealing    212 

defined 278 

punishment 278 

form  for  indictment  214 

jurisdiction    for    46 

penalty  for    213 

see  Kidnapping. 

Children,  crime  against  defined ' 288 

when  liable  for  crime  26 

Chinese,  bringing  into  the  state   174 

corporations   employing    178 

shrimp  or  dragnet,  use  of  prohibited 636a 

Chinese  sturgeon  lines,  use  of  prohibited  636a 

Circulars,    anonvmous    at   elections 62a 

62b 


774  INDEX. 

Page.   Sec. 

Circulation   of  newspaper,  misrepresentation  of 538i 

Circumstantial    evidence 361 

degree   of   certainty   required    362 

of   homicide    •. ' 197 

Cities,  regulation  of  police  in 719 

keeping   pest-house  within    373 

Citizen,  duty  to  make  arrest  when   837 

Civil  death  follows  life  imprisonment 674 

Civil  officers,  duty  of  militia  to  obey  when  730 

Civil   rights  of  convict  suspended   673 

Claims,  presenting  fraudulent  for  allowance   72 

Clerk  disclosing  fact  of  indictment 168 

duty  on  appeal 1246 

duty  to  prepare  calendar  1047 

must  prepare  judgment  roll    1207 

of  state  prison,  duty  of  1578 

when  guilty  of  embezzlement   508 

to  make  statement  of  expenses  of  trial  of  es- 
capes   Ill 

Closed    season    626 

Co-conspirators,  where  acts  of  one  act  of  all 366 

when  declarations  of  admissible   367 

Code,   construction  of   4 

" 5 

effect  on   past  offenses    6 

how   cited    24 

how  affecting  power  to  punish  for  contempt...  11 

military  authority  not  affected  by 11 

not  retractive    3 

what  acts  not  affected  by 23 

when  takes   effect    2 

Codicil  included  in  will  7 

Coercion,  effect  of  on  crime ; 41 

not  to  join  labor  organization   679 

Commission  to  take  testimony  defined   1351 

to  take  testimony,  see  Deposition. 

Commitment,  defect  in  not  ground  for  discharge  on 

write  of  habeas  corpus   1488 

for  examination,   how   made   292 

for  failure  to  give  increased  bail 985 

form    of 294       863 

"     877 

legality  of,  how  raised   287 

legality  of,  presumed    286 

meaning  of  legally  committed 285 

order  admitting  to  bail  not  essential  to  286 

order  of   873 

order  of,  how  made   294 

order  of,  when  operative   285 

of  witness  on  failure  to  give  security 881 

to  keep  the  peace   708 

what  to  contain    294       876 

when  order  of  sufficient    284,  448 


INDEX.  775 

Page,   Bee. 
Commitment  without  probable   cause,   habeas  corpus 

will   release    483 

Common  law  crimes,  not  recognized   33 

Communicatioti,  unauthorized  with  convict   : .  171 

Commutations,  governor  may  grant 1417 

Common  barratry,  see  Barratry. 

Common  carrier,  refusing  to  carry. 365 

Common   council,  bribery  of    165 

Competency  of  witness    346 

Complaint,  clerk  of  court  may  administer  oath  on..   283 

defined    806 

form   of    288 

must   state   public  offense    283 

necessary  to  proceedings  in  justice  court 142S 

of  defendant  by  fictitious  name 284 

on  information  and  belief  insuflBcient 283 

sufficient  deposition  to  sustain  warrant 286 

Compounding    crimes    107       153 

form  for  indictment   108 

penalty    for    % 107 

Compromise  of  crime,  effect  of  1678 

how   effected    1379 

when   allowed    1377 

Concealing  person  charged  with  crime,  see  Accessory. 
Concurrent  jurisdictions,  conviction  in  bar  to  second 

trial    47 

Conductor  of  railroad  train,  intoxication  of 391 

Confession  cannot  be  used  to  establish  corpus  delicti  373 

corroborated    need    not   be   voluntary 371 

defined 368 

must  be  voluntary  369 

out  of  court  will   not  sustain   conviction 369 

prosecution  must  show  was  voluntary 371 

received  with  caution  369 

voluntary   when    intoxicated    371 

written    sufficient    preliminary    examination....   283 

Consent,  instructions  on  age  of 436 

rape  under  age  of  249 

will   not   confer   jurisdiction    48 

Consignee,  obtaining  property  by  false  statement 536 

Conspiracy    109,  366 

agreement  alone  when  sufficient   366 

defined    182 

evidence  on  trial  for  1104 

form  for  indictment   110 

instruction   on    420 

jurisdiction  of   795 

penalty  for -. 110 

punishment  of  182 

"      183 

when  act  of  one  act  of  all 366 

when  overt  act  essential  to  184 


776  INDEX. 

Page.    Sec. 

Constable   is   peace  officer 817 

purchasing  judgment    97 

Constitutional  rights  of  defendant,  what  are 52 

Contagious  diseases,  see  disease. 

Contempt    Ill 

act  of  punishable  as  a  crime  also 657 

by   witness    115 

cannot  be  used  to  adjudicate  property  rights..   113 

defined    166 

disobedience  of  void,  order  not  480 

how  effected  by  code   11 

in  presence  of  couri  punished  peremptorily....   114 

insulting  letters  to  grand  jury 112 

judgment  on  final  not  reviewable  116 

jurisdiction  of   112 

mitigation  of  punishment,  grounds  for 658 

of  legislative  bodies 117 

order  violated  must  be  entered    113 

order  violated  must  be  in  pending  cause 113 

out  of  presence  of  court 114 

proceeding  on  must  show  jurisdiction 115 

violation  of  unlawful  orders   116 

what  acts  are    112 

who  may  be  punished  for   Ill 

^Continuances     321 

admission  of  fact,  effect  of   323 

affidavit  for  what  to  contain   321 

defendant  may  except  to  refusal  of 1173 

for  absence  of  counsel  324 

for  failure  to  try   1383 

granted  at  request,  do  not  waive  statute  limita- 
tions         48 

granting  discretionary  with  court    322 

grounds   for    321 

01^  what  proceedings   granted    323 

^Contracts  for  state  prison  must  be  by  public  letting  1587 

officer  illegally  interested  in   71 

superintendent   of   printing   interested   in 99 

Controller,  neglect  of  duty  by  441 

Conversion,  what  amounts  to  embezzlement 131 

Conveyance  of  property  by  prisoners 675 

of  real  property  by  fraud   531 

see  Forgery. 

-Conveying  instruments  to  prisoners,  form  for  indict- 
ment  for    141 

«Convict,  civil  rights  of  suspended   673 

compensation  for  transporting   1586 

credit  for  good  behavior  1590 

credit  for  good  behavior  when  forfeited 1591 

importing    173 

jurisdiction    to   try,     on     production   on    illegal 

order    48 

person  of  protected  by  law 676 

property   not  forfeited    677 

unauthorized    communication    with    171 


INDEX.  777 

Page.   Sec. 

Convict  labor,  how  employed   1588 

'Convict  made  goods,  limiting  sale  of 679a 

Conviction,  bail  after   68 

confession  out  of  court  will  not  sustain 369 

essential  to  punishment   681 

how  had   689 

imports  what   445 

in  concurrent  jurisdictions,  bar  to  trial 47 

in  foreign  country,  effect  of   656 

of  crime,  how  had   52 

of  lesser  offense,  effect  of  68 

of  lowest  degree,  when   1097 

or  acquittal  of  higher  offense,  effect  of 1023 

plea  essential   to    316 

plea  of  guilty   operates   as    60 

previous  confessed  must  be  excluded  from  jury  319 

previous  effect  of  confession  of 319 

proceedings  upon   1166 

void,  coram  non  judice 48 

"Coram  non  judice,  void  conviction  is  48 

■Coroner  to  issue  warrant  of  arrest,  when 1517 

"Coroner's  inquest,  six  jurors  must  be  sworn 1511 

testimony  of  witnesses  before,  where  filed....  1515 

when  to  be  held  1510 

witnesses  compelled  to  attend   1513 

witnesses  to  be  summoned  on 1512 

verdict  of  the  jury   1514 

•Coroner's  warrant,  form  of 1518 

how  served 1519 

'Corporation  director  presumed  to  know  its  condition.  568 

employing  Chinese  178 

179 

fraud  in  keeping  books  of 563 

fraud  in  organization  of 558 

fraud  in  subscriptions  to  stock  of 557 

information  against  1390 

information  against  action  of  magistrate 1394 

information  against  examination  of  charge 1393 

information   against   form   of   summons 1391 

misconduct  of  directors  of  560 

officer  publishing  false  reports  564 

proceedings  against,  appearance  and  plea 1396 

fine  against,  how  collected   1397 

proceedings   against    when    grand    jury    investi- 
gates     1396 

stockholder  right  to  inspect  books  of 565 

unauthorization  of  name  of  in  prospectus  of. . .  559 
wnen  director  presumed  to  assent  to  proceed- 
ings     569 

570 

Corporation  books,  false  entries  in   146 

false  entries  in,  penalty  for  146 

Corpse,  see  Dead  Body. 


778 


INDEX. 


Page.    Sec. 

Corpus  delicti  as  evidence 373 

confession  or  admission  will  not  establish 373 

in  homicide  cases   205 

must  be  established  before  other  offenses  ad- 
missible        380 

Corroboration  of  accomplice  necessary   1111 

of  testimony  of  accomplice 364 

Corruptly,  meaning  of   ^      7 

Counsel,   argument   of    396 

continuance  for  absence  of 324 

defendant  must  have  time  to  send  for 859 

'  defendant's   right   to    52,   a6,   284,  291       686 

duties   of    393 

number   that   may    argue 1095 

private   may   assist   district   attorney 398 

right  of  argument  by 56 

right  of  defendant  to  on  arraignment 987 

waiver  of  right  to 56 

Counterfeited    trade-niarl<s   defined 352 

Counterfeiting  coin,  bullion,  etc 477 

penalty  for    . .  ■ 478 

possession  of   478 

quicksilver  stamps  368 

railroad    tickets    481 

trade-marks     350 

see  Forgery. 

Counterfeiting  dies,  making  or  possessing 480 

Counterfeiting    implements,   possession   of 163 

County  jail,  duty  of  sheriff  to  receive  prisoner  in....  1601 

guard   for    1610 

how    kept    1597 

of  contiguous  county  may  be  used 1604 

prisoners  classified  In   1599 

prisoners  in  actual  confinement  of 1600 

room  required  in   1598 

when  unfit  for  use  prisoners  where  confined . . .  1603 

County  seat,  court  takes  notice  of 50 

County  treasurer,  see  Treasurer. 

Court,    appellate,   jurisdiction   lost   by   sending   down 

remittitur     48 

deemed  open  until  verdict  rendered 1142 

division   into   departments   for  convenience....     50 

duty  of  on  pronouncing  judgment 445 

duty   to    fix   punishment 12 

illegally     constituted,     jurisdiction     does     not 

attach     48 

jurisdiction    of    44 

jurisdiction  of  superior,  on  reversal 49 

may  advise  jury  to  acquit,  when 1118 

may  allow  private  counsel  to  assist  prosecution  398 

may   amend   record    399 

may  arrest  judgment  on  its  own  motion 1186 

may  direct  resubmission  to  grand  jury 942 


INDEX.  779 

Page.    Sec. 
Court  may  dismiss   action   on   application  of  district 

attorney     1386 

may  hear  circumstances  in  mitigation  or  aggra- 
vation  of   punishment    1203 

may  make  order  to  bring  a  prisoner  before  it. .  1567 

may  modify  instructions   410 

may  order  stolen  property  returned , 1410 

may  permit  jury  to  view  locus  quo Ill9 

may  read  statutes  and  decisions  to  jury 410 

may  suspend  judgment  of  conviction  of  minor 

when     1388 

misconduct  of   395 

must  admonish  jury   341 

must  admonish  jury  on  separation 1122 

must    charge    grand    jury 905 

must   charge   jury    1127 

must  decide  questions  of  law 1124 

must   determine    degree    when 1192 

must  not  instruct  as  to  facts 400 

new  trial  for  error  of 1181 

no  terms  of  in  California 50 

offenses  in  presence  of,  security  for 710 

power   on   Sunday    50 

recesses  of  defined   50 

rules    of,    object   of 398 

sessions  of  defined    50 

taking  case  from  jury 398 

when   jurisdiction   presumed 48 

when  to  discharge  grand  jury 906 

without  legal  existence,  habeas  corpus  releases 

from   conviction   by 48 

Courts  of  general  jurisdiction,  jurisdiction  presumed. .     48 
Courts  of  limited  jurisdiction,  no  presumption  in  favor 

of    48 

Crawfisii,    closed    season    for 628 

Credibility    of    witness 347 

Crime,  any  person  may  resist  when 694 

committed  in  two  or  more  counties,  jurisdiction 

over     45 

committed  partly  out  of  state,  jurisdiction  of. .     44 

compounding    107       153 

conviction  of,  how  had 52 

defined     : 33        16 

effect  of  coercion  on 41 

essentials    of 33 

how    divided     15 

how  effected   by  intoxication 22 

how   prevented   by  officers 697 

how    prosecuted 682 

ignorance  of  fact  excuses 41 

ignorance  of  law  no  excuse  for 41 

impairment  of  will,  no  excuse  for 38 

incapacity   for '^^ 

irresistible  impulse  no  excuse  for 38 


780  INDEX. 

Page.   Sec. 

<Jrime,  joint  operation  of  act  and  Intent 33 

jurisdiction     44 

jurisdiction   of,   commenced   out  of   state 45 

jurisdiction  of  crime  on  car  or  vessel 46 

lawful   resistance  to 692 

member  of  grand  jury  must  declare  knowledge 

of    922 

monomaniac  may  be  responsible  for 38 

on  boundary  of  county,  jurisdiction  over......     46 

parties    to     30 

penalty  and  definition  necessary  to  constitute.     33 

resistance  to   prevent 693 

union  of  act  and  intent  in 20 

voluntary  intoxication  no  excuse  for 39 

when  and  how  compromised 1377 

when  barred  47 

when    insanity    excuse 37 

VTbo    capable    of    committing 26 

who  punishable  for  in  this  state 27 

<!rime   against   nature 118      286 

assault    to    commit 220 

form    of    indictment 118 

penetration   sufficient  to   complete 287 

penalty  for   118 

Criminal    action    defined 683 

time  for  commencing 47 

rights   of   defendant   in 686 

removal  of   1033 

Criminal    capacity,    who    are    capable    of    committing 

crime     37 

Crops,   injury  to   standing 604 

Cross-examination    defined 359 

of   defendant    356 

Cumulative  sentences,  when  imposed 451 

Dairy,  false  tests  of  products '. c81a 

Dam,    injuries    to 607 

of  running  water  may  be  removed 637 

Damages,   omission  to   specify 9 

Dead  body,  arresting  or  attaching 295 

mutilating  or   removing 290 

unlawfully    interred    297 

unlawfully  removing  for  dissection 291 

who  entitled  to  custody  of 294 

:Deadly  weapon,  assault  with 24a 

assault  with,  instructions  on 433 

defined    87 

exhibition   of    417 

instructions    on    434 

possession  with  intent  to  assault 467 

see  Disturbance  ofvthe  Peace,  see  Assault. 

iOeath,   from   explosions 368 

from   mischievous  animal 399 

from    negligence     368 


INUKX.  78t 

Page.    Sec. 

Death,   from   negligence    36*' 

in     murder     and     manslaughter,     when     must 

occur    194 

judgment  of.  how  executed    1217" 

judgment    of,    judge    must    transmit    testimony 

to    governor    121S 

must  result  within   a  year  and   a  day  to  con- 
stitute   felonious    homicide 173 

Death-punishment  inflicted   by  hanging 1228 

Death   warrant,   return   on 1230^ 

Debt,  evidence  of  subject  of  embezzlement 51*' 

Debtor  fraudulently   concealing  property 154 

Decision,  when  defendant  may  except  to 1170- 

Declarations  in  presence  of  defendant 374 

of  co-conspirator  when  admissible  as  evidence. .  367 

when    admissible    .- 371 

Deed,  acknowledging  in  name  of  another 150 

forgery   of    470' 

see  Forgery. 

Deer,  closed  season  for  male   626f 

killing   of  female   prohibited 626e 

limit  of  killing  in  one  season 626i 

meat,  possession  of  in  closed  season 626k 

pelts,   possession  or  sale   of 626h- 

running  or  trailing  during  closed   season 626j 

De  facto  officer,  must  have  legal  office 18 

Defamation,  see  Libel. 

Degree,  court  must  determine  on  a  plea  of  guilty....  1192" 

verdict    must    find 1157 

when  circumstances  in  murder  show 178 

when  to  be  convicted  of  lowest 1097 

Degrees    of   arson 80       45 J 

"      454 

of   burglary    460' 

of  murder   177      189- 

of  murder   distinguished 179 

Defendant,   absence   of  at  trial 1181 

acquittal  or  conviction  of  one  jointly  indicted..  970^ 

acts  and  declarations  in  presence  of 374 

allegation   of  name 302 

amount    of   bail 68 

appeal   by    461 

appeal  without   consent  of 460 

arrest   of   on   recommitment 1312; 

as   witness    355 

bail  after  conviction,  when  granted 68 

bail     exonerated     when    discharged     for    want 

of  jurisdiction   111& 

bail   for   misdemeanor  when  arrested  in   other  . 

county   822 

cannot    be    made    a    witness    against    himself 

without    consent    56 

cannot  be  twice   put  in   jeopardy 52,     60 


782  INDEX. 

Page.   Sec. 
Defendant  cannot  consent  to  trial  by  less  than  twelve    54 
cannot  plead  once  in  jeopardy  after  new  trial 

granted     62 

cannot      waive     preliminary     examination      in 

felony    283 

character  of  as   evidence -381 

complaint  of  by  fictitious  name 284 

conduct   of   as    evidence 375 

confession  of  as   evidence 368 

conviction  of  lesser  offense,  effect  of 63 

court  may  order  committed  to  custody  to  abide 

judgment    1129 

crime  stated   in   complaint  and   in  information 

must  be  same  287 

cross-examination   of    356 

discharge  of  for  lack  of  jurisdiction 1113 

discharge  of  jury  for  escape  of  does  not  con- 
stitute jeopardy  61 

discharged  on  reversal  on  appeal i262 

does  not  waive  privilege  by  taking  stand 56 

doubt  as  to  sanity  determined 1368 

duty  of  court  to  on  arraignments 313 

duty  of  magistrate  toward   291 

duty  of  magistrate  to  inform  of  right 858 

duty  of  officer  taking  money  from.... 1412 

effect  of  discharge  for  failure  to  state  offense..  1117 

effect  of  discharge  for  want  of  jurisdiction....  1115 

effect  of  discharge  to  be  a  witness 1101 

effeat  of  dismissal  of  information 62 

effect  of  insanity  of 390 

effect  of  standing  mute 65 

entitled   to   public  trial 54 

entitled  to   separate  trial 1098 

entitled  to  stay  until  bill  of  exceptions  settled . .  468 

errors   favorable   to    176 

exception   to  refusal   of  continuance 1173 

flight  of   375 

fraudulently    concealing    property 155 

how    jeopardy    pleaded 65 

how   surrendered    1300 

.   In  custody  how  brought  for  judgment 1194 

Indicted  by  fictitious  name 953 

insane  where  detained   1372 

is  party  prosecuted . , 685 

Jeopardy  attaches  after  jury  sworn 60 

jeopardy  does  not  attach  where  jury  discharged 

by   consent  of   60 

jointly  tried  must  join  in  challenge  to  juror.. ..   331 
Jointly  charged  no  right  to  separate  preliminary 

examination    282 

jointly  tried,  verdict 1160 

may  appeal,  when 1237 

may  be  compelled  to  stand  for  identification...     56 
may  be  discharged  to  be  a  witness  when  evi- 
dence   is    insufficient 1100 

may  claim  privilege  when  occasion  arises 56 


INDEX.  783 

Page.   Sec. 

Defendant  may  demur  or  plead    1002 

may  except  to  order  on  motion  for  change  of 

venue     1173 

may   except  to   what 1170 

may    have    witnesses    conditionally    examined 

when    1335 

may  produce  witnesses  on  examination 866 

may   take  depositions   conditionally 55  • 

may  waive  right  to  be  confronted  by  witnesses. .     56 

may   waive  time  for  sentence H8 

must    be    arraigned 976 

must  be  informed  of  right  to  challenge  jurors..  1066 

must    be    present    on    arraignment    in    felony 

cases     313 

must  be  present  at  judgment 1193 

must  prove  absence  from  trial  if  he  objects...     58 

must  show  cause  against  sentence 447 

must  withdraw  plea  of  prior  conviction  before 

denying    320 

need  not  appear  in  appellate  court 1255 

need  not  sign  bail  bond 67 

no  right  to  particular  remedy 59 

not   bound   to   explain   except  when   burden  of 

proof    shifts    ; 65 

not   compelled   to    be   a   witness    against   him- 
self      688 

52     1323 

not  entitled  to  non-suit 390 

not  entitled  to  particular  juror 55 

not     in     custody,     proceedings     on     indictment 

found    945 

not  indicted  by  true  name,  proceedings  on  ar- 
raignment      989 

on  bail,  how  brought  for  judgment 1195 

order  admitting  to  bail   293      875 

ordered  recommitted  when  admitted  to  bail 1314 

plea  of  guilty  is  conviction 60 

plea  of  before  justice  of  the  peace  must  be  oral  1429 

pleas  of   315 

presence  in  appellate  court  not  necessary 57 

presence   of,   when   necessary 57 

presence  of  at  trial  before  justice  of  the  peace  1434 

presumption    as    to    character 382 

presumption  of  guilt  on  application  for  ban 66 

presumption    of   innocence 65     1096 

proceedings   against  where  bail   increased 986 

proceedings  where  taken  before  another  magis- 
trate       82t5 

recommitment  of  contents  of  order 1611 

released  on  bail,  when  recommitted 1310 

restraint  to  be  put  on 688 

right  only  to  lawful  jury 335 

right  to  appear  in  person  and  by  counsel 52 

right  to  appear  without  irons &y 

right  to   bail 52,     66 

right  to  be  confronted  with  witnesses 52 


784  INDEX. 

Page.    See^ 
Defendant,     right    to     be     protected     against    forced 

examination     56 

right  to  challenge  jury 331 

right  to  continuance 321 

right    to    counsel 56,  284,  291 

right  to  counsel  on  arraignment   98T 

right  to  counsel,  waiver  of  56 

right  'to  jury  trial 54 

right  to  legal  formalities  in  selecting  jury 55 

right  to  protection  from  forced  examination....   357 
right  to  protection  from  second  prosecution ....  687 

right  to  speedy  and   public  trial 52 

right  to   trial   by   due   process   of  law 52 

rights    of    before    grand    jury 296 

rights  of  in  criminal  action 686 

service  of  articles  of  impeachment  on 740- 

standing   mute,   duty   of   court 317 

standing  mute,  effect  of 1024 

statute  of  limitation  does  not  run  when  out  of 

state 802 

subject  to   what   restraint 835 

taking  in  custody  after  admission  to  bail 67 

to  be  confronted  by  witnesses  against  him...     55 
to    be    discharged    upon    sustaining    demurrer 

when    1009^ 

to  be  ordered  into  custody  after  retirement  of 

jury    68 

to  be  taken  before  magistrate  issuing  warrant..  821 

to  be  taken  before  magistrate  without  delay. .  825 

time  to  prepare  for  trial 1049 

when  and  how  committed 872 

when  burden  of  proof  shifts  to  1105 

when  challenge  to  juror  taken  by 1086 

when  discharge  to  be  a  witness 1099" 

when  discharged  and  how. 871 

when  duty  of  magistrate  to  hold .*. . .  283 

when  held  on  preliminary  examination 293 

when  must  be  present  at  arraignment 977 

when  present  at  rendering  of  verdict 1148 

when  required  to  be  personally  present  at  trial  1043 

when  to  be  discharged 116& 

when  to  be  discharged  by  justice  of  the  peace. .  1454 
when  discharged  on  preliminary  examination...   293 
when       to    be    discharged    on    arrest    of   judg- 
ment      1188 

when  to  be  discharged  in  homicide  cases 199- 

when  to  be  informed  of  intention  to  make  ar- 
rest      841 

when  to  be  recommitted 1313 

who  authorized  to  admit  to 67 

witnesses  must  be  examined  in  presence  of...  292 

Defense,  insanity,  received  with  caution 38 

Deformity,    exhibition    of 40O 

Defraud,   intent   to S 

Deliberation  defined    179 


INDEX..  785* 

^  ...  Page.    Sec. 

Deliberation,   time   for   in   murder 179 

Delusion,  insane,  how  judged 39 

Demand,  when  essential  in  embezzlement 132 

attorneys  buying  jgl 

Demurrer,  allowance  of  when  a  bar 1008 

disallowed,   proceedings   after lOli 

exception  to  allowing  or  overruling 1172 

failure  to  make  waived  what  objections '           1012 

form  of    1005- 

grounds  of  '. 1004 

judgment   on    1007 

to    jurisdiction    proper 49 

proceedings    after    sustaining 316 

special,   to   information 305 

sustained,  when  defendant  to  be  discharged  on  1009 

what  objections  taken  by 315 

when  heard    1006 

when  made    1003 

when  order  sustaining   appealable 316 

Departments  of  court,  division  into  imaginary 50 

convenience    50 

Deposit  instead  of  bail 1295 

instead  of  bail  return   on   surrender  of  defend- 
ant      1302; 

instead  of  bail  to  be  applied  how 1297 

instead  of  bail,    when    forfeited 1307 

Depositions  at  examination 864' 

at   preliminary    examinations    when    admissible 

at  trial   385 

before   magistrate  to    contain    what 812" 

complaint  a  sufficient  to  sustain  warrant 286 

commission  and  return,  inspection  of 1361 

commission  to  take  when  granted 1352^ 

to  whom  made    ,     1353 

commission  when  and  how  filed 1360 

direction  as  to  commission  to  take 1356 

commission  how  executed 1357 

return  of   1358 

"     1359 

every  requirement  must  be  observed  in  taking. .  55 

for  search  warrant  what  to  contain 1527 

of  imprisoned    witness     134& 

of  witness  conditionally  examined  sent  to  clerk  1344 

of  witness  conditionally  examined  when  used.  .  1345 

of  witness  unable   to    give    security 882 

order 'granting  commission  take,  effect  of 1354 

settlement   of  interrogatories    1355 

taken  conditionally  on  behalf  of  defendant....  55 

taken  on  commission  to  be  read  in  evidence...  1362 

to  be  kept  by  magistrate 870 

to  be  returned  by  magistrate 883 

when  deemed  complete  in  perjury 124 

when  returned  to  court  by  grand  jury 941 

witnesses    at    examination 869- 


CRIME8--50 


786  INDEX. 

Deputy  taking  reward  for  appointment  of 74 

Digging  on  land  of  another,  see  Trespassing. 
'Direct   examination    defined 359 

iDirectors   of   corporation,   misconduct  of 560 

defined 572 

presumed  to  know  condition  of  corporation 568 

when  presumed  to  assent  to  proceedings  of  a 

corporation    569 

570 

Discharge  for  threatened  offense,  when 705 

Disease,    exposing    persons    affected    with    in    public 

places     394 

Disguise,  wearing  of 185 

Dismissal  for  failure  to  try,  effect  of 1384 

of  action  by    court    1385 

of  action  when    allowed    1382 

when   a   bar 1387 

Disorderly  conduct,  see  Disturbance  of  the  Peace. 

Disorderly    house,    keeping 316 

Dissection,  unlawfully  removing  dead  body  for 291 

District  attorney,  duty  of 393 

duty  on   arrest  of  fugitive 1554 

duty  on  inquisition  of  insanity , 1222 

duty  to  destroy  indecent  articles 314 

duty  to  subscribe  and  file  information 809 

failing  to  attend  trial  court  must  appoint 1130 

misconduct   of    393 

must  be  notified  of  application  for  pardon. . . .  1421 
must  be  notified    when    bail    a   matter   of    dis- 
cretion      1274 

must  sue  on  undertaking,   when 712 

private  counsel  may  assist 398 

proceedings    for    removal   of 771 

Disturbance  of  meeting  of  electors b8 

of  legislature  82 

public    403 

religious     302 

Disturbance   of  the   peace 121 

assembly   for    416 

form   for  indictment 121 

Divorces,   attorneys   advertising  to  procure 159J 

Docket   must  be  kept  by  justice   of  the   peace  and 

police  justice   1428 

Dogs,  property  susceptible  of  larceny 491 

Domestic  animal,  altering  brands  on 357^ 

Dove,  closed  season  for   626a 

Drag-net,  use  of  prohibited 636a 

Driving   fast  on   toll    bridge 388 

Druggist,  omitting  to  label  drugs 380 

Drugs,  administering  of  to  commit  abortion 274 

administering    stupefying    222 

omitting  to  label 380 


INDEX.  787 

Page.   Sec. 

Drunkenness,  effect  of  on  intent 36 

Insanity   caused    by 39 

when  admissible  in  homicide  case 204 

Duck,  closed  season  for 626 

Due  process  of  law  defined 58 

Duel,  defined    225 

duty  of  oflicer  to  prevent 230 

killing  in  not  self  defense 190 

jurisdiction     where    inhabitant    of    state    con- 
cerned in  779 

leaving  state  to   engage  in 780 

leaving  the  state  to  fight   230 

penalty  for   226 

"     227 

persons  fighting  disqualified  to  hold  office 228 

posting   for  not  fighting 229 

privilege  in  prosecution  for  engaging  in 232 

Dueling,  jurisdiction  foj     out  of  state 45 

Duplicate  receipts  musi   »ie  so  marked 580 

Duress,  when  a  defense  to  crime 26 

Duty,  omission  of  by  public  officer 176 

Dying  declarations,  when  admissible 200 

as    to    what    admissible 202 

Dynamite,  taking  fish  by 635 

Eggs  of  birds,  possession  or  destruction  of 626b 

Election,  aiding  or  abetting  in  violation  of  laws 52 

altering   returns    of 48 

anonymous    political    circulars 62a 

62b 

attempting  to  vote  without  qualification 46 

betting  on   60 

candidates   for  legislature  accepting  assistance  63i 

changing  ballots   at 48 

changing  votes    cast 51 

corrupting   electors    53 

defrauding  electors    53 

disturbances   of  meetings   of  electors 58 

forging  or  altering  returns  of 50 

fraudulent    voting    45 

furnishing    money    for 54 

inspectors  unfolding  or  marking  tickets 49 

intimidating    electors    5i 

no   prosecution  against  witness  testifying  at. .  64 

offenses    against    primary 64^ 

offering  to  procure  offices  for  electors 55 

"        "          '•                -56 

officer,  acting  as  without  appointment ,40 

how   punished    40 

officer,   violation    of  law. .  41 

punishment    for 41 

procuring    illegal    voting 47 

promise    by    candidates    to    U.    S.    senators    to 

secure     63 


788  INIrKX. 

Page.   Sec. 

Election,  refusal  to  obey  summons  of  board 44 

violation  of  laws  of 61 

"       "       "   62 

Election  board,  refusal  to  -e  sworn  by '48 

Election  laws,  forms  for  indictment  for  violation  of. .   124 

crimes   against    123 

penalty  for  violation  of 123 

Electric  wires,  interference  with 593 

Electricity,   larceny   of 499a 

Elisor,   when   appointed 330 

when   to   be   appointed ,.  298 

Elk,  killing  of  female  prohibited 626e 

Embezzlement     131 

by  agent 133 

by  bailee    507 

by  carrier    505 

by  officer    504 

by  officers 424 

by  public  officer   133 

by  trustee     506 

claim  of  title  a  defense 511 

defined     503 

demand  essential  to,  when 132 

distinct  act  of  taking  not  necessary 509 

distinguished   from   larceny 218 

evidence   134 

form   for  indictment 136 

how    pleaded    967 

indictment  in 135 

intent     134 

intent  to  restore  no  defense 512 

of  public  moneys,   no  limitation 47       799 

ownership     135 

penalty  for   136       514 

property  subject  of   131 

property  susceptible  of   510 

restoration  of  property,  effect  of 513 

venue    134 

what  amounts  to  a  conversion 131 

when  agent  or  clerk  guilty  of 508 

when   allegation   sustains 1131 

Embracery,  see  Bribery. 

Employer  paying  wages  in  a  saloon 680 

refusing  to  give  names  of  employes  to  tax  col- 
lector      434 

Engineer,    intoxication    of 391 

omitting  to  ring  bell  at  crossing 390 

Enticing  to  place  of  gambling 318 

Enticing  to   place  of   prostitution 318 

Errors  favorable  to  defendant 476 

in  proceedings,  when  not  material 1404 

must   be   argued 467 

presumed    prejudicial    471 


INDEX.  789 

Page.    Sec. 

Errors,  presumption  against  on  appeal 469 

specification  of  in  bill  of  exceptions 466 

Escapes    140      106 

••: 107 

assisting   prisoner   to 109 

attempt  to  make... 106 

"     107 

breaking  doors  to  retake 855 

carrying  into  prison  things  to  aid 110 

expense   of  trial   for Ill 

forms  of  indictment  for 140 

instruction   on    421 

jurisdiction  of   46      787 

pending   appeal,   effect 460 

penalty    for    140 

retaking  of    854 

unauthorized  release  pending  appeal  is 450 

Estates,  appraisers  of  accepting  reward 6531 

Evidence     361 

acts  and  declarations  in  presence  of  accused. .   374 

admissible  under  plea  of  not  guilty 1020 

admissions  as    370 

alibi    391 

anticipating  defense    390 

bill  of  exceptions  presumed  to  contain  all 466 

burden  of  proof 388 

circumstantial    361 

conduct   of   accused 375 

confession   as    368 

conflicting  not  reviewed  on  appeal  472 

corpus    delicti 576 

declarations   as    371 

depositions  at  preliminary  examination 385 

destroying    135 

expert    384 

extortion     144 

flight  of  defendant   as   evidence 375 

hearsay  includes  what 383 

hypothetical   question   must  be   based  on 390 

In  abortion  and  seduction  1108 

in    arson    82 

in  assault  to  murder 91 

In  bigamy    1106 

In  breach  of  undertaking 713 

In  bribery    98 

In  burglary    103 

In    conspiracy    366     1104 

In.  embezzlement    134 

In  false   pretenses    156    1110 

in  forgery    161 

In  gaming    168 

in  homicide    203 

In  incest     210 

In  larceny    220 

In  perjury 242 


790  INDEX. 

Page.   Sec. 

Evidence  in  rape 250 

in  receiving  stolen  goods 259 

In  robbery  265 

in  threatened  offenses 704 

in  treason 1103 

instruction  on  failure  to  produce 418 

in  seduction    269 

judicial  notice  366 

new  trial  for  newly  discovered 1181 

objections   to    474 

of  accomplice     363 

of  character  of  defendant 381 

of  experiments    383 

of  flight,   instruction  on    421 

of  motive    192 

of  other   offenses,    when    admissible 378 

offering  false   132 

on  selling  lottery  tickets 1109 

on  trial  for  forging  bank  bills 1107 

preparing    false    134 

preponderance  to  prove  insanity 40 

possession  of  stolen  property  as 220 

presumptions   of 387 

privileged   communications   as    377 

receivable    before    grand    jury 919 

reporter's    notes    as    386 

reporter's  notes  at  former  trial,  as 55 

res  gestae  in  homicide 195 

review    of   on    appeal 471 

rules  of  applicable  to  criminal  cases 1102 

suflaciency  of  when  reviewable  on  appeal 473 

upon  challenge  to  juror 335 

when  declarations   are  admissible  as 371 

when  declarations  of  co-conspirator  admissible. .   367 
when   prior   diflftculty  may   be   shown  in  homi- 
cide       194 

written  statements  by  witness  not  admissible..     56 

motion  to  strike  out,  when  allowed 476 

necessary  to   find   indictment 921 

see  Circumstantial  Evidence. 

Examination,  authentication  of  testimony  at 869 

defendant  may  produce  witnesses 866 

defendant,    protected    from   forced 56 

postponement    of    861 

depositions  to  be  read  at 864 

exclusion  of  spectators  at 868 

of  witnesses   359 

of  witnesses,  presence  of  defendant 866 

when  to  be  completed 861 

Exceptions  by  defendant,  may  be  taken  to  what 1173 

by   defendant,    when   taken 1170 

defined    464 

how   settled    1174 

may  be  taken  to  what 1172 

Excusable  homicide  182 


INDEX.  791 

Page.   Sec. 

Execution,   date   of  may   be   changed 451 

day   of,   where   named 447 

imprisonment   pending  part  of  punishment  for 

murder     451 

of  death,  penalty  where  to  take  place 1229^ 

of  judgment  other  than  death ,  1213 

order   fixing  date  of 446 

Executor,    embezzlement   by    506 

Exempt  fireman,  officer  issuing  false  certificate  as....  649 

Exhibition    of   deformed    persons 400 

Experiments,    evidence    of    '. 383 

Expert    evidence     384 

Explosives,    unlawfully    keeping 375 

Express  company  transporting  game 627a^ 

Express  malice,  see  Malice  Aforethought. 

Extortion     143 

by  executive  officer  70- 

by  judicial  officer 94 

by  threat  to  publish  libel 257 

defined 518^ 

evidence   144 

force  or  fear  essential    143 

forms    for    indictment     144 

illegal    fees     143 

in  obtaining  signature   ; 522 

Indictment   for    144 

kidnapping    for 209 

penalty  for   144      520 

penalty    for    attempt 524 

sending  threatening  letters    143       523 

under  color  of  official  right 521 

what  threats  may  constitute 519- 

Extradition     484 

affidavit  on  information  and  belief 485 

arrest  and  detention,  proceedings  on 485 

illegal    means    used    does    not    impair    jurisdic- 
tion       484 

power  of  governor  on 485- 

proceedings  for  the     arrest     and     detention  of 

fugitives    pending    ISSC 

proceedings    must    have    been    commenced    in 

demanding    state    485 

trial  only  on  charge  for  which  demanded 484 

warrant,  when  issued  for  fugitive 484 

when   matter   of   comity    484 

Facts,   assuming   in   instructions 404 

issue  of  defined ^ 1041 

issues  of,  how  tried 1042" 

False  certificate  by  officer 167 

False  entries  in  books  of  corporations 146 

form   for  indictment  for 146 

penalty  for   146 


792  INDEX. 

Page.    Sec. 
False   evidence,    procuring   of 241 

False  imprisonment   148 

form  for  indictment  for 148 

defined    -. 236 

penalty  for   148      237 

False  measure   defined 552 

■False  personation    149 

defined    528 

defrauding  by  529 

form  for  indictment  for 149 

in   acknowledging   instruments 529 

of   bail    529 

penalty  for   149  " 

to  procure  property  530 

False  pretenses   151 

concerning   birth   of   infant 158 

distinguished    from    larceny 155,218 

doctrine  of  caveat  emptor  not  applicable 154 

evidence    156 

evidence    on    trial    of 1110 

indictment  and  form  for  157 

intent  of  defrauded  party  not  material 153 

jurisdiction  of  Superior  Court  49 

negligence  of  defrauded  party  not  material 154 

obtaining  property  by   532 

pepalty  for   156 

property   subject   of    154 

verdict    156 

what  are   153 

False    registration   of   animals 537i 

False  reports,  made  by  officer  of  corporation  564 

False  representations,  married  person  selling  land  by  534 

False  signature  necessary  in  forgery 160 

False  statement,  consignee  obtaining  property  by 536 

False  swearing,  see  perjury. 

False  weight  defined 552 

Falsification  of  public  records,  no  limitation 47      799 

Faro,  game  of   168 

Fear,  alone,  no  justification  of  homicide 198 

an  element  of  robbery   264 

essential  to  robbery  212 

necessity  of  in  extortion   519 

Federal  jurisdiction,  depends  on  federal  statute 44 

does  not  attach  by  ownership  of  land 44 

matter  of  defense  45 

over  Indians   45 

Federal  prisoners  must  be  received  at  state  prison...  1581 

-Felony,  arrest  for  without  warrant 836 

assault  to   commit 221 

barred   by   statute,   conviction   of  misdemeanor 

under  not  allowed    48 

defendant  must  be  present  at  trial  of 1043 


INDEX.  798 

Page.    Sec. 

Felony    defined    33        17 

dismissal  not  a  bar  in 1387 

how   punished    Ig 

impeachment  of  witness 349 

imprisonment  in  state  prison  only  in 450 

limitation  to  certain   800 

must  be  tried  by  jury 1042 

preliminary  examination  cannot  be  waived 283 

punishment  for  after  prior  conviction 666 

statute  of  limitation  on 47 

when  arrest  may  be  made  for 840 

Females,  exhibition  in  public  places  prohibited  when..  306 

employing  to  sell  liquor  at  theatres  prohibited. .  303 
eee  Abduction,  see  Seduction,  see  Rape. 

Ferry,  crossing  without  paying  toll 389 

maintaining  without  authority   386 

violating  undertaking  to  keep 387 

Fictitious  bill,  making,  passing  or  altering 476 

Fictitious  instruments,  making  of  not  forgery 161 

Fictitious  name,  signing  of  not  forgery 160 

Fine,  defendant  entitled  to  discharge  on  payment  of. .  1457 

duration  of  imprisonment  to  pay 1205 

execution  must  issue  for 1214 

failure  to  pay  over 427 

from  game  laws,  disposition  of 631b 

how  disposed  of  1570 

imprisonment  by  justice  of  the  peace  for  non- 
payment of   1446 

imprisonment  by  justice  of  the  peace  till  paid..  1456 

judgment  to  pay  a  lien 1206 

non-payment  of,  imprisonment  for 449 

violation  of  fish  act,  disposition  of 637 

when  may  be  added  to  imprisonment 672 

Fine  and  imprisonment,  how  imposed 448 

judgment  for,   how  executed 1215 

Fire,  larceny  of  goods  saved  from 500 

obstructing   attempts   to   extinguish 385 

setting  woods  on  384 

Fire  department,  issuing  false  certificates 649 

Fire  arms,  selling  to  Indians 398 

Fish,  catching  with  seine 634 

closed  seasons  for   628 

placing  screen  in  stream  to  prevent  fish  from 

running     629 

preservation  of   628 

use  of  explosives  in  taking 635 

Fish  ladder,  when  to  be  constructed 637 

Fish   laws,  fines  under  disposition  of 637 

Flight,  instruction  on  evidence  of 421 

as   evidence    375 

Flume,   injuries   to    607 

Foods,  adulteration  of   382 

disposing  of  tainted    383 


794 


INDEX. 


_         ^    ^                                                                            Page.   Sec. 
Force  to  be  used  in  making  arrest 843 

Forcible  entry  and  detainer 41g 

419 

Ford,  maintaining  without  authority 386 

Foreign  corporation,  when  director  presumed  to  assent 

to   proceedings    571 

Forfeiture,  none  of  property  of  convict 677 

to  specify  ground  10 

Forfeiture  of  bail,  discharge  of 1306 

Foreman  of  grand  jury,  appointment  of 902 

oath  of 903 

to  administer  oaths 918 

to  present  presentment  to  court 932 

Forged  instrument,  attempting  to  pass 35 

offering  for  record   115 

Forgery 158 

actual  injury  not  essential 160 

evidence     • 161 

false  signature  necessary   160 

form  of  indictment 164 

guilty  knowledge  essential  in  uttering 161 

how  pleaded   966 

idem  sonans  applies   161 

indictment   163 

indictment    may   be    for    one   or   all   acts    enu- 
merated      160 

instruments  susceptible  of 158      470 

intent  to  defraud  essential 160 

invalid  instruments   159 

making   fictitious   instruments   not 161 

making  and  uttering  are  both 160 

making,  passing  or  uttering  fictitious  bill 476 

of  bank  bills,  evidence  on 1107 

of  entry  in  books  of  record 471 

of  seal    472 

of  telegraphic  messages    474 

or  marking  returns  at  election 50 

passing  or  receiving  forged  paper 475 

penalty  for    164       473 

signature  by  agent  not 160 

signing  fictitious  name  not 160 

variance    162 

verdict  163 

writings  nudum  pactum  not  subject  to 159 

Form  for  verdict  by  reason  of  insanity 440 

Former  acquittal,  for  variance   1021 

what  is 1022 

Former    offense,    punishment    after 666 

Fraud    by    false    personation 529 

in  destruction    of    vessel 539 

in  keeping  books  of  corporation 563 

in  making  second  mortgage    538 

in  organization  of  corporation 558 


I 


INDEX.  795 

Page.  Sec. 

Fraud  in  stock  subscriptions 557 

in  weights   381 

practiced  to  affect  market 395 

Fraudulent  bills,  presenting  for  allowance 72 

Fraudulently   taking   water 167 

Freehold,  severing  from    602 

Freight  cars,  putting  passenger  cars  in  front  of 392 

Fugitive  from  Justice    484 

admission  to  bail   1552 

district  attorney  must  be  notified  of  arrest  of. .  1553 

duty  of  district  attorney  on  arrest  ol .  . .  i 1554 

from   this   state   expense  of  apprehending   and 

returning    1557 

magistrates  to  issue  warrant  for  apprehension 

of    1549 

officer  not  entitled  to  compensation  for  procuring 

surrender  of  155& 

officer  taking  fee  for  arrest  of 144 

proceedings  against  to  be  returned  to  the  super- 
ior  court    1556 

proceedings  for  the  arrest  and  detention  of....  1550 

when  and  what  time  to  be  committed 1551 

when  the  party  arrested  to  be  discharged 1555 

when  to  be  delivered   up 1548 

Gambling,  enticing  to   place  of 31JJ 

see  Gaming. 

Game,  limit  of  day's  bag  of 626d 

netting  or  trapping  of  prohibited 631 

preservation  fund  631b 

shipments  of  must  be  labeled 627b 

transportation  of  prohibited    627a 

trespass  to  kill  627 

Game    laws    171 

disposition  of  fines  from 631b 

forms  for  indictment 171 

penalty   for  violation  of 631a 

Gaming 168 

banking  game 168 

court  takes  judicial  notice  of  character  of  game  169 

duty  of  officer  to  prosecute  for 335 

form  for  indictment   170 

evidence   168 

expert  evidence  of  character  of  game 16a 

indictment     169 

instructions   on    438 

penalty    169 

permitting  in  house  owned  or  rented 331 

pretending  to  give  authority  to  conduct 337 

privileges  of  witnesses  in  prosecution  for......  334 

prohibited  ones  defined   330 

winning  by  fraudulent  means 332 

witness  refusing  to  attend  trial 333 

Gas,  larceny  of   49& 

Gaspipes,  injury  or  destruction  of 624 


796  INDEX, 

Page.  Sec. 

General  Verdict,  form  of 1151 

Glanders,  animal  having  to  be  killed 402i 

exposing  animal  with  402 

Gold  coin,  value  of  property  by  on  punishment 678 

Good   behavior,  credits  for 451  1590 

Goods  made  by  convict,  limiting  sale  of 679a 

Governor  may  declare  county  in  state  of  insurrection  732 
may  grant    reprieves,    commutations    and    par- 
dons     1417 

may  offer  reward  for  apprehension  of  fugitives  1547 
may  require  opinion  of  supreme  court  on  death 

judgment    1219 

may  revoke  proclamation  declaring  insurrection  733 

may  suspend  conviction  of  treason 1418 

must  communicate  pardons,  etc.,  to  legislature. .  1419 

to  order  out  military  when 725 

transmission  of  conviction  on  judgment  of  death 

to    1218 

Grand  juror,  acting  after  challenge  allowed 164 

disclosing  fact  of  finding  indictment 168 

may  be  excused  by  judge  when 297 

oath    of    904 

qualification   of    297 

Grand  jury,  appointment  of  foreman 902 

challenge  to 298 

challenge  to  individual  grand  juror 896 

challenge  to  individual   juror    •  894 

challenge  to  panel    895 

charge  of  court  905 

decision  of  on  challenge 898 

disclosing   what  transpired   before 169 

duty  and  authority  of 295  928 

effect  of  challenge  to  individual   juror    900 

effect  of  challenge  to  panel    899 

effect  of  dismissal  of  bill   by    296 

effect  of  dismissal  of  charge    942 

entitled  to  access  to  prison 924 

evidence  receivable  before   919 

foreman  to  administer  oath    918 

foreman  to  present  indictment   944 

how  composed    296 

how  selected     297 

how  summoned    297 

matters  to  be  inquired  into  by 923 

may  order  suit  to  recover  county  moneys 929 

member  not  to  be  questioned  for  conduct  on. . . .  927 

members  must  declare  knowledge  of  crime 922 

not  bound  to  hear  evidence  for  defendant 920 

number  concurring  in   indictment    940 

oath  of  foreman    903 

objections  to.   how  taken 901 

obligation  to  secrecy 296 

order   for   special    908 

order  for  special,  how  executed 909 

powers  of   915 


INDEX.  ^^ 

Page.   Sec. 

presumption    in    favor   of 296 

resubmission  of  charge  to 998 

right  of  defendant  before 296 

secrets  of  to  be  kept 926 

sending  insulting  letters  to 112 

special,  how  formed    910 

term  of  existence    297 

to  return  deposition  when  no  indictment  found  941 

trial   of  challenge   to    897 

twelve  to  concur  in  presentment 931 

when  indictment  ought  to  be  found  by 296 

when  special   directed    907 

when  to  be   discharged    906 

when  to  find  indictment   921 

when  to  investigate  proceedings  against  corpor- 
ation      1395 

who  adviser  of   925 

who  may  be  present  at  session  of  926 

witness    defying    112 

Grand  larceny,  assault  to  commit 220 

defined 487 

penalty  for   48& 

see  Larceny. 

Graveyard,  see  cemetery. 

Grouse,  closed  season  for  62"5 

possession  of  in  closed  season 626k 

Guideposts,  malicious  injury  to    590 

Guilty,   plea  of,   how   entered 1018 

plea  of,  how  made  317 

verdict  of  imports  what 443 

Gunpowder,  destroying  building  by  means  of 601 

endangering  lives  by   means  of 601 

unlawfully  keeping    375 

Habeas  corpus    478 

application    for,    how    made 1474 

a  remedy  for  what 478 

burden  on  petitioner   481 

concealing  persons  entitled  to  writ  of 364 

confining  prisoners  discharged  on  ?63 

defect  in  commitment  not  ground  of  discharge  1488 

defect  of  form  of  writ  immaterial 1495 

denial  does  not  bar  another  application 482 

disposition  of  petitioner  pending  return 1494 

effect  of  discharge  for  defective  commitment..   481 
errors  and  irregularities  not  reviewable  on....  479 

examples  in  which  writ  will  lie 479 

examples  in  which  writ  will  not  lie 479 

hearing  on  return  of  writ 1483 

inquires  only  into  jurisdiction 479 

riol  appealable    481 

office  of  writ   478 

on  commitment  without  probable  cause 483 

petition  for,  what  to  contain 1474 

petitioner  may  be  committed  to  legal  custody..  1493 

proceedings  on  disobedience  of  writ   1479 

proceedings  on  hearing   1484 


798  INDEX. 

Page.   Sec. 
Habeas  corpus  proceedings  where  commitment  Is  de- 
fective     1489 

refusing  to  issue  or  obey 362 

releases  for  conviction  by  court  without  legal 

existence 48 

return  on  writ  must  contain  what  1 480 

return  to  warrant    1500 

to  admit  to  bail 482     1286 

■'       "    1490 

penalty  for  failure  to  issue  or  obey  writ 1505 

warrant   may   issue    for   persons   charged   with 

illegal   restraint    1498 

warrant  on  how  executed   1498 

when  body  must  be  produced 1481 

when  court  must  discharge 1485 

when  remand  party   1486 

when  hearing  may  be  had  without  body 1482 

when  imprisonment  after  discharge  permitted..  1496 

when  judge  to  remand  1492 

when  party  may  be  discharged  or  remanded...  1501 

when  petitioner  may  be  discharged 1487 

when  warrant  may  issue  instead  of  writ 1497 

when  writ  will  issue  out  of  county 482 

who  may  prosecute  writ 1473 

writ  by  supreme  court  returnable  before  super- 
ior      482 

writ  by   whom   granted 1475 

writ  must  issue  without  delay 1476 

writ  to   contain   what 1477 

writ  how    served    1478 

writs  and  process,  by  whom  issued  and  when 

returnable     1503 

writs    and    process,    when   may   be   issued   and 

served   1502 

writs  and  process,  where  returnable 1504 

Harbor,  throwing  overboard  ballast  in 613 

Harbor  tolls,  unlawful  collection  of 642 

Health  laws,  neglect  to  perform  duties  under 378 

violation    of    377 

Hearsay  evidence    383 

Highway  robbery,  see  robbery. 

Highways,  malicious   injury  to 588 

racing  upon    396 

Homicide    173 

being  shown,  defendant  must  justify 174 

burden  of  proof    190 

by  accelerating  or  hastening  death 173 

circumstantial  evidence  of  197 

death  must  result  within  a  year  and  a  day 173 

evidence   203 

evidence,  character   of  deceased    197 

evidence,  dying    declarations     ' 200 

evidence  of  corpus  delicti  205 

evidence  of  motive    192 

evidence  of  threats  by  defendant 199 


INDEX.  799 

Page.   Sec. 

Homicide  evidence  res  gestae 195 

evidence,  statements    and    declarations    of    de- 
ceased       198 

evidence,  threats  by  deceased  198 

evidence,  when    declarations    part    ot  res    ges- 
tae     '. 196 

evidence,  when  prior  difficulty  may  be  shown..  194 

excusable   182 

felonious,  justifiable  or  excusable  173 

felonious  is  murder  or  manslaughter 173 

in  defense  of  habitation     .' 184 

in  defense  of  property    184 

in  mutual   combat    187 

in  resisting  unlawful  arrest  185 

in  self  defense    185 

justifiable  182 

magistrate  must  appoint  reporter  in 283 

maps  andi  photographs  as  evidence 193 

not  justified    by   fear 198 

not  justified  by  threats   186 

provocation  sought  by  slayer   181 

provocation     sufficient      to      reduce      to      man- 
slaughter      18o 

self  defense,  apparent  danger   188 

self  defense,  duty  to  retreat   189 

self  defense,  founded    on   necessity    190 

self  defense,  killing   in   duel    190 

self  defense,  plea  not  available  when   190 

self  defense,  present  ability  of  assailant 189 

self  defense,  sufficiency  of  danger   188 

supervening   circumstances,   how  affecting 173 

venue     205 

when  accused  to  be  discharged   199 

when  act  causing  death  is  malum  in  se 182 

when  act  causing  death  is  malum  prohibitum..  182 

when  evidence  of  drunkenness  admissible  204 

when  excusable     195 

when  expert  opinion  admissible 193 

when  justifiable  by  person  other  than  officer. .  197 

when  justifiable  by  public   officer    196 

when  mutual  combat  is  manslaughter 180 

when  officer  justified  in  making  arrest 183 

when  threats  necessary  to  be  communicated..  186 
see  Murder. 

House  of  correction,  when  commitment  made  to 450 

House  of  ill  fame,  see  111  Fame,  see  Seduction. 
Housebreal<ing,  see  Burglary. 

Humboldt   Bay,  depositing  refuse  in 612 

Hunting  in  night  time  prohibited 626m 

Husband  when  not  competent  as  witness 1322- 

Hypothetical    instructions    405 

Hypothetical  question  must  be  based  on  evidence 390 

Hypothecated  property,  selling  without  consent 581 

Idom  sonans,  doctrine  of,  applies  to  forgery 161 


800  INDEX. 

Page.    Sec. 

Idiot,   cruel  treatment   of    361 

incapable  of  committing  crime 37 

not  punishable  for  crime  26 

Ignorance  of  fact  excuses  crime  41,  371 

Ignorance  of  law  does  not  excuse  41 

Illegal   fees,  extortion   143 

III  fame,  enticing  female  into  house  of 270 

keeping  or  residing  in  house  of  prohibited 315 

putting  wife  into  house  of 270 

Impaneling    jury     332 

Impeachment,  articles  of  how  prepared 738 

articles  of  to  be  delivered  to  whom 739 

answer  of  defendant    744 

disqualifies  until  acquittal    753r 

effect  of  judgment  of  suspension 750 

judgment  how   pronounced    747 

nature   of   judgment    749 

no   bar  to   indictment    753 

of  witness   349 

of  witness,  instruction  on    418 

of  lieutenant    governor    752 

officers  liable  to   737 

pleadings  of  defendant    743 

proceedings   where  no  appearance    742 

resolution  of  majority  judgment 748 

senators  to  be  sworn  on  trial 745 

service  of  defendant   740 

service  on  defendant,  how  made  741 

time   of  hearing    740 

trial    by    senate    738 

vacancy  by,  how  filled 751 

votes  necessary  to  convict  746 

Impersonation,  see  False  Personation. 

Implied  bias,  ground  of  challenge  to  juror 1074 

see  Bias. 
Implied  malice,  see  Malice  Aforethought. 

Importing    convicts    173 

Imprisonment  by  justice  of  the  peace  for  non-payment 

of   fine 1446 

competency  of  witness  not  affected  by 675 

false     148 

for  life    671 

for  non-payment  of  fine   449 

in  state  prison  how    executed     1216 

in  state  prison  only  in  felony  450 

judgment  of  by  justice  of  the  peace,  how  ex- 
ecuted      1455 

second  term  to  commence  when 669 

to  pay  fine,  duration  of 1205 

when  fine  may   be  added  to 672 

when  term   commences    670 

imprisonment  and  fine,  how  imposed   448 


INDEX.  801 

Page.   Sec. 

Incest   210 

attempt  to  commit   210 

defined     286 

evidence "  210 

form  for  indictment    211 

jurisdiction  for  46 

penalty   211 

Incestuous   marriage,   solemnizing    35J> 

attempt  to  contract   34 

Indecent  articles, character  to  be  summarily  determined  313 

duty  of  district  attorney  to  destroy 314 

seizure  of  authorized   ." 312 

Indecent  exposures   prohibited    311 

Indians,  federal  jurisdiction  over  45 

selling  firearms    to    398 

selling  liquor    to     231       397 

Indictment   295 

against  superior  judge   1029 

allegation  of  asportation  in  larceny  224 

allegation  of  intent  in  larceny   224 

allegation  of  larceny  as  bailee  225 

allegation  of  ownership  in  arson  81 

allegation  of  ownership  in  larceny  225 

defined    917 

disclosing  fact  of  finding  168 

description  of  property  in  larceny  223 

effect  of  order  resubmitting   998 

evidence  necessary  to  find   921 

first  pleading  by  people  300 

for  abduction    73 

for  abortion    75 

for  adultery    76 

for  assault  to    murder    92 

for  assault  with  deadly  weapon 87 

for  arson    80 

for  arson,  allegation  of  intent 81 

for  bigamy     95 

for  bribery    98 

for  burglary    103 

for  embezzlement 135 

for  extortion     144 

for  forgery Ibrf 

for  forgery     may     be     for     one     or     all     acts 

enumerated 160 

for  fraudulently  taking  water 167 

for  gaming    169 

for  kidnapping  and  child  stealing  213 

for  libel    230 

for  murder    206 

for  perjury     243 

for  rape   255 

for  receiving   stolen  goods    ....'. 259 

for  resistance  of  public  officers  261 

for  robbery    2fi6 

for  selling  liquor  to  Indians  231 

form  for  951 

CRIMES>-S1 


802  INDEX. 

Page.    Sec. 

.Indictment,  form  for  in  assault  89 

form  for  in  arson 82 

form  for  in  bigamy   , 96 

form  for  in  bribery    99 

form  for  in  burglary  106 

form  for  in  compounding  crimes  108 

form  for  in  conspiracy     110 

form  for  crime  against  nature   118 

form  for  defrauding  innkeepers   119 

form  for  disturbance   of  the   peace    liJi 

form  for  in  embezzlement    136 

forms  for  in  escapes  140 

forms'  for  in  extortion    144 

form  for  false  entries  in  books  of  corporations  146 

form  for  in  false  imprisonment    148 

form  for  in  false   personation    149 

form  for  in  false    pretenses    157 

form  for  in  forgery   164 

forms  for  in  game  laws  171 

form  for  in  gaming     170 

form  for  in  incest   211 

form  for  in  kidnapping  and  child  stealing 213 

form  for  in  larceny    226 

form  for  in  libel     230 

form  for  in  mayhem    23<t 

form  for  in  murder    205J 

form  for  in  perjury     245 

form  for  practicing  medicine  without  license. . .  236 

form  for  injury  to  public  jails  142 

form  for  in  rape   256 

form  for  in  receiving  stolen  goods   260 

form  for  in  resistance  to  public  officers 262 

form  for  in  robbery     266 

form  for  in  seduction   271 

form  for  in  selling  land  twice   272 

form  for  in  selling  liquor  to  Indians 232 

form  for  in  throwing  vitrol   275 

form  for  in  train  wrecking    277 

form  in  trespassing  278 

forms  for  in  vagrancy    280 

forms  for  violation  of  election  laws  124 

form  for  violation  of  sepulcher   273 

grounds  of  demurrer  to 1004 

how  presented  and  filed   944 

impeachment  no  bar  to   753 

in  what  court  found    890 

motion  to  set  aside,  grounds  of 995 

mnst  allege  absence  from  state  when  relied  on    47 

must  be  certain  as  to  what  952 

must  be  found  within  thirty  days   52 

must  show   jurisdiction 46 

number  of  jurors  defined    940 

number  of  jurors  to  concur    In 296 

preliminary  examination  not  essential  to 287 

presentation  of  misdemeanor  by,  gives  no  juris- 
diction to  superior  court  49 


INDEX.  808 

Page.  Sec. 

Indictment  proceedings  on,  defendant  not  In  custody..  946 

when   found    296  803 

witnesses  to  be  endorsed  on  943 

see  Information. 

Irdtstrial    school,   no   right   to   jury   trial   to   commit 

to    55 

I nf ancy  defined  37 

Infant,  false  pretenses  concerning  birth  of 156 

£  abstitution  of  157 

to  give  security   as  witness    880 

see  Kidnapping,  see  Abduction. 

Inferior  courts,  no  presumption  in  favor  of 48 

Ir.formation    282 

effect  of  order  to  file  new 998 

"gainst   defendant   by   fictitious   name 953 

r.gainst   several,   one   may   be   convicted  or   ac- 
quitted   970 

allegations  in  must  be  direct  and  certain  as  to 

what  305 

allegation  of  negative  qualification  309 

allegation  of  ownership    306 

allegation  of  time   305 

allegation  of  venue  in 300 

allowance  of  demurrer  to,  when  a  bar 1008 

ambiguity "  fatal   to    311 

can  only  charge  one  offense  307 

certainty  as  tb  time   955 

conjunctive  and  disjunctive  allegations  in 310 

construction  of  words  in   957 

defect  of  form  not  fatal 960 

demurrer  to,  when  proper   315 

designation    of    offense    301 

dismissal  of  no  bar  to  further  examination....   315 

effect  of  dismissal  of  on  jeopardy 62 

endorsements  and  signatures    311 

exception  to  granting  or  refusing  motion  to  set 

aside    1172 

first  pleading  for  people 300 

for   threatened   offenses    "  701 

form    of    951 

form  of  bench  warrant  on 981 

grounds   of  demurrer  to 1004 

in  language   of  statute   sufficient 302,  304 

judgment,  how  pleaded  in   962 

kinds  of  plea  to   1016 

like  indictment   in   form    809 

motion  to  set  aside    313 

motion  to  set  aside  when  heard   *  997 

must  be  certain  as  to  what  952 

must  be  filed  within  thirty  days   . . . .  ^ 52 

must  be  for  crime  stated  in  complaint 287 

must  charge  one  offense  954 

must  state  specific    facts    303 

must  state  sufficient   facts    304 

name  of  accused  in   802 


804  INDEX. 

Page    Sec. 

Information  need  not  allege  examination 285 

no  presumption  in  favor  of 311 

objections  to.  how  and  when  taken  313 

objections  to,  when    waived    by    failing    to    de- 
murrer      1012 

offense,  how  alleged    302 

order  setting  aside  not  a  bar   999 

order  setting  aside  when  appealable   315 

plea  to,  how  entered    1017 

pleading  for  selling  obscene  books,  etc 968 

pleading  forgery    965 

pleading  larceny  and  embezzlement 967 

pleading  libel    964 

pleading  perjury  and  subornation   '966 

preliminary  examination  essential  to 282,  287 

presumption  of  law  need  not  be  pleaded  in....  961 

presumption  of  time  of  filing   285 

private   statute,  how   pleaded    963 

proceedings,    if    demurrer    disallowed 1011 

proceedings  on  resubmission  of  charge 1010 

prosecution  by,   is  due   process   of   law 59 

set   aside,    when    other   examination   necessary 

for     284 

statement  as  to  injury   956 

stating  one   offense,   examples   of 308 

stating  two  offenses,  examples  of 308 

surplusage  does  not  vitiate   305 

sustaining    demurrer    to    defendant   to    be    dis- 
charged when 1009 

technical   defects   unimportant    305 

to  be  in  name  of  people 809 

to  be  subscribed  by  district  attorney 809 

use  of  words  of  statute  in 958 

want  of  Jurisdiction,   how   raised 305 

what   objections   waived   by  not  moving  to  set 

aside    996 

what  to   contain    950 

when  joinder  of  counts  permitted 309 

when  new   may  be   filed 285 

when  set   aside   on   motion    995 

when  special    demurrer    necessary 305 

when  sufficient    959 

when  to   be   filed    809 

where    prosecuted    889 

Inhabited    building   defined    449 

Injury,  ability  to  inflict  necessary  to  assault 85 

to  public  jail,  form  for  indictment  for 142 

Innkeepers,    defrauding    119 

form   for  indictment    119 

penalty    for    119 

refusing   to   receive   guests    365 

Innocence,  presumption  of   65 

of  defendant  presumed    1096 

Insane  defendant  detained  where 1372 

expense  of  sending  to  asylum 1373 


INDEX.  806 

Page.   Sec. 

Insane  asylum,  keeping  liquor  within  one  mile  of 172 

Insane  delusion,   how   judged    39 

Insane  person  cannot  be  tried  or  punished 1367 

r  ot  punishable  for  crime  26 

Insane  prisoners,  disposition  of   1582 

Insanity,  defense  of,  looked  on  with  distrust 38 

degree  of  mental  unsoundness  excusing  crime. .  38 

effect  of   390 

exonerates   bail    1371 

fixed,  from  drunkenness  excuses 40 

from   drunkenness    39 

Hadfield's   case 39 

how  determined  1221 

inquisition  of    1222 

inquisition  of,  how  certified   1223 

inquisition  of,  proceedings  on  verdict   1224 

instruction  on    424 

law   of   undergone    changes 37 

may  be  shown  against  judgment  1201 

moral  no  defense  38 

must  be  proved   by  defendant 40 

order  of  trial   1369 

proceedings  on  acquittal  for. 1167 

proceedings  stayed  for   1368 

rule  in  McNaughton  case 38 

verdict  by  reason  of,  form 440 

verdict  on  trial  of 1370 

when  excuses  crime   37 

when  presumed  to  continue   40 

Insolvent  bank  officer,  receiving  deposit 562 

inspectors,  see  Ejection. 

Instructions    400 

ambiguous   411 

approved     419 

argumentative    404 

assuming  facts  404 

construction  of   408 

contradictory    , 411 

defining  wilfully    418 

duty  of  court  to  give  few  general 413 

effect    of   requesting   erroneous 413 

erroneous  followed  by  proper 408 

exception  to,  when  made —  413 

facts   assuming   in    404 

how    reviewed    415 

inconsistent    411         _ 

invading  province  of  jury 402 

jury  to  take  to  jury  room 418 

modification    of    by    court    410 

must  be  in  writing 416 

on  age  of  consent    436 

on  application    to    facts    414 

on  assault    434 

on  assault  to  commit  rape  436 


806  INDEX. 

Page.   Sec. 

Instructions  on  assault  to  murder  4d3 

on  assault  with  deadly  weapon 433 

on  authentication    417 

on  corroboration  of  accomplice    420 

on  corroboration  of  prosecutrix    437 

on  credibility    of    witnesses 400,  418 

on  crime     417 

on  consequence  of  acts 419 

on  conspiracy    420 

on  deadly    weapon    434 

on  degrees  of  murder 425 

on  determining  credibility  of  witness 420 

on  distrusting  witnesses   407 

on  effect  of  impeachment   419 

on  escape    421 

on  evidence    of    flight 421 

on  facts     400,  402 

on  failure  to  call  witness  420 

on  failure  to  produce  evidence  418 

on  flight  as  evidence  of  guilt 421 

on  form  of  verdict  in  rape 437 

on  gaming     438 

on  impeachment  of  witness  419 

on  insanity    424 

on  intent    418 

on  intoxication 423 

on  malice 418,  434 

on  manslaughter 425 

on  murder    425 

on  necessity  of  force  in  rape. 437 

on  penetration  and  emission  436 

on  perjury,  administering  oath  434 

on  perjury,  materiality  435 

on  perjury,  proof  of  false  statement 435 

on  province  of  jury  418 

on  rape  436 

on  reasonable  doubt   422 

on  scanning  evidence  of  prosecution  in  rape...   437 

on  self  defense 430 

on  weight  of  testimony  400 

oral  must  be  taken  down  by  reporter 416 

presumption  of  fact  province  of  jury 406 

reading  statutes  and   decisions    410 

requested   412 

repetition    of    411 

should  be  hypothetical 405 

should  be  with  reference  to  facts 405 

should  not  give  judge's  opinion  on  facts 401 

surplusage  does  not  vitiate 409 

Instrument,  false  personation  in  acknowledging 529 

invalid  not  subject  to  forgery  169 

in  writing,  larceny  of  uncompleted 494 

larceny  of  written   492 

offering    forged    for    record 165 

susceptible  of  forgery  158 


INDEX.  807 

Page.   Sec. 
Insurance  by  companies  that  have  not  complied  with 

law     43!) 

presenting   false   proofs    549 

Insurance  company,  defrauding  of  by  burning 79 

Insured  property,  fraudulent  burning  or  destroying...  54S 

burning  of,  see  Arson. 

Insuring    lottery  tickets   prohibited 324 

Insurrection,   governor   may   declare   county   in   state 

of    732 

governor  may  revoke  proclamation  declaring..  733 

resistance  of  process   after    411 

Intent,  a  question  of  fact  in  assault  to  murder 91 

allegation  of  in   larceny 224 

depends  on  sound  mindi 37 

discovered  from   circumstances    36 

effect  of  drunkenness  on  36 

element  of  every  crime 20 

essential  to  burglary 101 

felonious  in  murder  judged  by  result 176 

how  alleged  in  arson   81 

how  manifested 21 

in   assault 84 

in  embezzlement  134 

in  larceny    217 

in  robbery   265 

judged  from  acts  35 

law  does  not  take  cognizance  of  criminal 34 

may  be  explained 36 

necessary  to  constitute  crime 33 

of   defrauded   party  not   material   in  false  pre- 
tenses      153 

specific,  when  necessary  36 

when  law  supplies  to  kill  177 

Intent  to  defraud ^ 

essential  to  forgery 160 

Intent  to  destroy  essential  to  arson  80 

Intent  to  kill  essential  to  assault  to  murder 90 

essential  to  murder  in  first  degree 179 

may    exist   without   malice 176 

not  necessary  to  constitute  murder 175 

Intention,  absence  of,  as  effecting  criminal  capacity..     3T 

alone  not  punishable   34 

when  presumed  from  act  35 

Intoxication,  as  affecting  crime    22 

instruction   on    423 

involuntary,  how  affects  criminal  responsibility     40 

physicians  acting  under  influence  of 346 

when  admissible  in  homicide  case 204 

Interest   unlawfully   charging  by   pawnbroker 340 

Interments,    unlawfully    made 297 

Interrogatories,  settlement  of 1355 

Invoice,  false  making  of 5" 

Involuntary    manslaughter    1^1 


803  INDEX. 

Page,   Sec. 

Irons,  right  of  defendant  to  appear  without 59 

Irresistible  Impulse  does  not  excuse  crime 38 

Issue  of  fact,  when  arises 1041 

Issues  on  calendar,  order  of  disposition 1048 

Jail,  form  for  indictment  for  injury  to 142 

injuring  or  destroying   606 

Jeopardy  attaches  after  jury  is  sworn 60 

cannot  be  based  on  new  trial  granted  on  appeal     62 

defendant  cannot  be  put  in  twice  52       687 

discharge   for   material  variance  does  not  con- 
stitute         61 

discharge  of  jury  for  escape  of  does  not  consti- 
tute         61 

does  not  attach  where  jury  discharged  by  legal 

necessity  or  consent   60 

effect  of  conviction  of  lesser  offense 63 

effect  of  dismissal  of  information 62 

effect  of  statute  increasing  punishment 63 

how  pleaded    65 

on  conviction  of  lesser  offense  1023 

two  offenses  must  be  the  same  61 

what  is   60 

Joinder,  when  counts  permitted 309 

Judge,  bias  of,  change  of  venue  for  327 

bribery  of   92 

may  amend  proposed  bill  of  exceptions 467 

may  excuse  grand  juror  297 

misconduct  of    395 

must  admonish  jury   341 

must  be  present  at  trial   58 

ot  election,  see  Election. 

of  Superior  Court  is  magistrate   808 

of  Supreme  or  Superior  Court  may  grant  writ 

of  habeas  corpus   1475 

should  not  give  opinion  on  facts  in  instructions  401 

Judgment  and    sentence    445 

JuQgment,  arraignment  for  1200 

arrest   of    458 

cause  may  be  shown  against   ,  1201 

certified  copy  of  sufficient  commitment  448 

court  may  arrest  on  its  own  motion 1186 

court  must  appoint  a  time  for  1191 

defendant  in  custody,  how  brought  for  ........  1194 

defendant  to  be  present  at  when 1193 

duty  of  court  on  pronouncing    445 

effect  of  aflirmance  on  appeal  1263 

effect   of   arresting    .^ 1187 

essential  to  conviction   ". 689 

execution,  issue  when  for  fine  1214 

execution  of   1213 

fine  and  imprisonment,  how  executed  1215 

how  affected  by  appeal   468 

how  pleaded 962 

how  stayed  by  appeal  1243 


INDEX.  i-02 

Page.   Sec. 

Judgment,  justice  or  constable  purchasing 97 

kind  of  on  verdict  1155 

motion  in  arrest  of  458     ii85 

of  appellate  court,  how  entered 1264 

on  demurrer   1007 

recitals  in   445 

to  be  entered,  how  by  justice  of  the  peace.....  1453 

to  be  entered  unless  cause  shown  against 1202 

void  in  part    446 

when  defendant  to  be  discharged  on  arrest  of..  1188 

when  sufficient    445 

arrest  of.  see  Arrest  of  Judgment. 

Juc c ment  roll,  return  on  venire  no  part  of  338 

notice  of  motion  for  no  part  of 454 

what   constitutes    1207 

Judgment  of  death,  how  executed   1217 

not  executed,  proceedings  after  1227 

proceedings  in  case  of  pregnant  woman   1225 

when  suspended   1220 

Judicial   notice    388 

court  takes  of  character  of  game 169 

court  takes  of  streets  and  numbers 50 

of  county   seat    50 

Judicial  officer,  asking  for  bribe 93 

Junk-dealers,  sections  of  code  applicable  to    344 

certain  cases  of  murder  790 

concurrent  when  a  bar  793 

"      794 

consent  doep  not  confer   48 

courts  of  limited,  no  presumption  in  favor  of..     48 

crime  on  vessel  or  car  46 

crimes  out  of  state,  fruits  of  brought  into  state     44 

defined    44 

discharge  of  defendant  for  want  of 1113 

discharge  of  jury  for  lack  of  1114 

duelling  out  of  state    45 

effect  of  defendant  for  want  of 1115 

federal  depends  on  statute  44 

habeas  corpus  inquires  into  479 

how  determined    48 

illegally  constituted  courts,  does  not  attach 48 

indictment  must  charge  facts  to  show 46 

misdemeanors  by  indictment  does  not  give  Su- 
perior Court   49 

not  affected  by  failure  to  state  time  of  offense. .     50 

objections  to,  how  taken  49 

of  abduction   784 

of  accessory  791 

of   assaults 89 

of  bigamy    46,     96       785 

of  conspiracy   ; 795 

of  contempt    112 

of  courts  of  general,  presumed 48 

of  crimes  committed  partly  out  of  state 44 


810  INDKX. 

Page.    Sec. 

Jurisdiction  of  crimes  commenced  out  of  state 45 

of  crime  on  boundary  of  county 46 

of  crime  on  Sunday  50 

of  escapes    46       787 

of  kidnapping 46       784 

of  magistrates  in  preliminary  examination   ....  286 
of  murder  and  manslaughter,  death  in  different 

county     47 

of  murder  and  manslaughter,  where  injury  in- 
flicted      47 

of  offenses  on  railroad  car 783 

of  prize  fights    795 

of  seduction   784 

of  stolen  property  taken  into  another  county. . .     46 

of  treason   788 

of  treason,  overt  act  out  of  state,  any  county..     45 

of  trial  court  on  reversal   49 

offenses  commenced  outside  of  state  . ". 778 

offenses  committed  on  vessels   783 

offenses   partly  committed  in  two   counties 781 

offenses  within  the  state   777 

on   appeal    460 

original  of  Superior  Court   , 49 

over  accessory,  county  of  his  offense 47 

over  crimes  committed  in  two  or  more  counties     45 

over  non-present  principal    47 

over  persons  leaving  state  to  engage  in  duel...  780 

persons  leaving  state  to  evade  laws  of 795 

proceedings  on  contempt  must  show  115 

property  taken  from  one  county  to  another....  786 

spectator,  prize  fight   795 

stealing  property  out  of  and  bringing  into  state  789 

stolen  property  brought  into  state,  any  county 

where  brought  45 

stolen  property  from  other  state   45 

Superior  Court  of  assaults   49 

Superior  Court  of  false  pretenses  49 

Superior  Court  of  Nuisances   49 

to  try  convict  produced  by  illegal  order 48 

void  penalty  does  not  destroy   49 

Juror,  asking  or  accepting  bribe,  form  for  indictment     99 

becoming  sick  during  proceedings   1123 

becoming  sick  after  retirement  of  jury  1139 

bribery  of    92 

cannot  impeach  verdict   344 

causes  of  challenge,  how  stated    1076 

challenge  for  actual  bias   336 

challenge  for  cause,  definition  and  kinds  of. . .  1071 

challenges  for  cause,  how  taken   1087 

challenge  for  implied  bias   339     1074 

challenge  to  when  taken   1068 

challenge,   how   tried    1078 

challenge,  when  taken   334 

challenged  may  be  examined  as  witness  or. . . .  1081 

defendants  jointly  tried  must  join  in  challenge  to  331 
disqualification,  when  urged   340 


INDKX.  811 

Page.    Sec. 

Juror,  decision  of  court  on  challenge  to,  how  entered  1083 

defendant  must  make  challenges  first   108& 

evidence  upon  challenge  to   335 

exception  to  and  denial  of  challenge  1077 

exclusion  of  not  sworn,  not  denial  of  public  trial     54 

excusing  for  cause   335 

exemption  not  ground  of  challenge  107& 

foreigner  not  entitled  to  alien  jury 55 

general  causes  for  challenges    1072 

grounds  for  challenge  for  actual  bias   1073 

having  knowledge  may  be  sworn  as  a  witness.  1120 

improper  attempt  to  influence   i,o 

kinds  of  challenges  to   1067 

number  of  peremptory  challenges  to  1070 

particular  causes  for  challenges   1073 

peremptory  challenges   333 

peremptory  challenges,  how  taken   1088 

peremptory  challenge,  when  and  how  taken 1069 

rules  of  evidence  of  trial  of  challenge  to 1082 

when  opinion  does  not  disqualify   1076 

when  opinion  no  disqualification  337 

when  ruling  on  challenge  to  reviewable 336 

witness  to  be  examined  on  challenge  of 1082 

Jurors,  misconduct  of 96 

drinking  liquors    341 

reading  newpapers    342 

receiving  evidence  out  of  court  343 

separating    342  > 

Jury    329 

amendment  of  challenge  and  withdrawal   1062 

admonishing  by  court  . .'. 341     1122 

before  justice  of  the  peace,  where  to  decide 1440 

bound  to  receive  law  as  given  by  court. 1126 

challenges  to  before  justices  of  the  peace 1436 

challenge  of  bias  of  summoning  officer  1064 

challenge  to  defined   1055 

challenge  to  panel 331 

challenge  to  panel,  when  and  how  taken 1060 

challenged  by  defendants  jointly  indicted 1056 

charging   of    1127 

court  deemed  open  until  verdict  rendered 1142 

court  may  advise  to  acquit  lllS 

decide  law  in  libel  1126 

defendant  cannot  consent  to  less  than  twelve  . .     54 

defendant  has  right  only  to  lawful  335 

defendant  must  be   informed   of  right  to   chal- 
lenge member  of   1066 

defendant  no  right  to  particular  juror  55 

defendant's   right  to  formalities  in   selecting. .     55 

defendant   waives   by  pleading  guilty 55 

denial  to  challenge  may  be  oral 1063 

disagreement  of,  power  of  court  to  adjudicate 

on    Sunday    50 

discharged  for  lack  of  jurisdiction  1114 

effect  of  allowing  challenge  to  panel 1065- 

effect  of  discharge  for  failure  to  state  offense..  HIT 

effect  of  discharge  of  from  necessity  60 


812  INDEX. 

Page.   Sec. 

effect  of  discharge  without  verdict  1141 

exception  to  challenge,  how  taken   1061 

how  formed    1046 

how  summoned   330 

impaneling    332 

instructions  invading  province  of  402 

instruction  on  province  of   418  - 

legislature  may  deny  right  to  trial  by  in  petty 

cases    55 

may  be  waived  in  misdemeanors  55 

may  be  waived  when  1042 

may  convict  of  lesser  offense  included  in  charge  1159 

may  decide  where   1128 

may  retiirn  for  information  after  retiring 1138 

may  take  instructions  to  jury  room 413 

must  be  put  in  charge  of  sworn  officer 1128 

names  to  be  called  on  return  to  court 1147 

no    right   to   trial   by   to    commit   to   industrial 

school    55 

oath  to  before  justices  of  the  peace  1437 

order  of  challenges  to  1087 

presumption  of  facts  within  province  of 406 

receiving  evidence  out  of  court,  new  trial  for..  1181 

room  must  be  provided  for  on  retirement 1135 

right  of  defendant  to   54 

right  of  trial  by,  consisting  of  twelve  men 54 

right  to  challenge   331 

right  to  trial  by  for  commitment  to  Whittier...     55 

selection  of    329 

separation  of   1121 

separating,  new  trial  for  1181 

to  be  supplied  with  food  and  lodiging 1136 

to  determine  law  and  facts  in  libel  251 

waiver  of  before  justice  of  peace  1435 

what  papers  may  take  on  retirement  1137 

when  court  may  allow  alternate  jurors 1089 

when  to  be  discharged    1140 

when  to  be  polled  1163 

when  to  return  to  court 1147 

see  Grand  Jury. 

Jury   lists,  adding  names  to    116 

falsely  certifying    117 

Justice  court,  proceedings  before,  how  commenced..  1426 

see  Justice  of  the  Peace. 

Justice  of  the  peace,  affect  of  discharge  of  jury  by...  1445 

affidavits,  how  entitled  before   1460 

appeals  from,  when  allowed    1466 

appeals,  how  taken,  heard  and  determined 1467 

cannot  charge  as  to  facts  1439 

challenges  to  jury  before   1436 

change  of  venue  before  1431 

conduct  of  trial  before  1 438 

defendant  discharged  on  payment  of  fine  when  1457 

defendant  must  be    personally    present  at  the 

trial  before   1434 


INDEX.  H13 

Page.  Sec. 

Justice  of  the  peace,  fines  by  disposition  of 1457 

defendant  when  admitted  to  bail 1458 

defendant  wiien  to  be  discharged 1454 

entitling  affidavits  in  court  of 1460 

if  jury  discharged  may  be  retried   1444 

is  magistrate    808 

issue,  how  tried  before   1430 

judgment  against  prosecutor  for  costs 1447 

"       "         1448 

judgment  of  imprisonment  until  fine  paid,  how 

executed    1456 

judgment  of  imprisonment,  how  executed 1455 

judgment  of,  how  to  be  entered   1453 

judgment,  when  to  be  rendered 1449 

jury  may  decide  where  1440 

may  admit  to  bail   1458 

may  subpoena  witnesses    and    punish  disobedi- 
ence to  subpoena  1459 

motion  in  arrest  of  judgment  1452 

must  keep  docket   1428 

neglecting  to  pay  over  fines  427 

new  trial  when  granted  by  1451 

oath  to  jury  before   1437 

oath  of  officer  taking  charge  of   1440 

postponement  of  trial  before   1433 

procee'dings  on  changes  of  venue  before 1432 

purchasing  judgment    97 

verdict  of  before  must  be  general  1441 

verdict  where  defendants  are  jointly  tried 1442 

waiver  of  jury  trial  before   1435 

when  may  imprison  for  non-payment  of  fine 1446 

when  to  discharge  jury  without  verdict 1443 

Justices  of  Supreme  Court  are  magistrates   808 

Justifiable     homicide     .  . .  .^ 182 

see  Homicide. 

Jurisdiction,  want  of,  how  raised    305 

where  inhabitant  of  state  concerned  in  duel 779 

where   offense   committed   on   county   boundary 

line    Ill 

where  principal  not  present   •  '92 

Kidnapping   212 

defined    

for  purpose  of  extortion  or  robbery 

indictment  and  form   213 

jurisdiction  of   ^" 

penalty  for    213 

Kill,    attempt    to 216 

Knowingly,  meaning  of   " 

Label,  must  be  on  game  shipments  627b  • 

Labor  by  prisoner,  rules  and  regulations  confirming..  1614 

Labor  organization,  coercion  not  to  join 679 

Land,  married  person  selling  by  false  representations  534 

selling  twice   272       533 


207 
209 

784 
208 


814  INDEX. 

Page.   Sec. 

Landmark,   maliciously   injuring    605 

Larceny    215 

asportation    216 

by  bailee   218 

by  fraudulent  games    332 

defined    484 

distinguished    from    embezzlement 218 

distinguished  from  false  pretenses   155,  218 

distinguished   from   receiving  stolen   property..  223 

dogs  susceptible  of   491 

evidence    220 

form  for  indictment   226 

goods  saved  from  fire  500 

grand     219 

how  divided    486 

how  pleaded   967 

indictment,   asportation,    how    alleged .^ 224 

indictment,  bailee,  how  alleged   .' 225 

indictment,  description  of  property 223 

indictment,    intent,   how   alleged    224 

indictment,  ownership,  how  alleged    225 

intent    217 

not  included  in  burglary  223 

of  gas    498 

of   electricity    499a 

of  lost  property  485 

of  property  after  severing  from  realty 495 

of  property  out  of  state  497 

of  record 113 

114 

of  uncompleted  instrument  494 

of  water    499 

of  written  instruments  492 

ownership  of  property  215 

penalty  for   226 

possession  of  stolen  property  as  evidence  of. .   220 

property   subject  of   215 

time  of  taking  216 

value  of  tickets    493 

variance    222 

venue   223 

when  allegation  sustained   1131 

Lascivious  conduct  towards  children   288 

Law  questions  to  be  decided  by  the  court 1124 

Lease,  forgery  of  470 

Legal  custodian,  who  is  in  abduction  72 

Legal  notice,  destroying  or  tearing  down 616 

Lega!   office,   de   facto  oflicer,   must  have    48 

Legally   committed    defined 285 

Legislature,  altering  draft  of  bill 83 

altering  enrolled  bill  of   84 

bribery  by  members  of   88 

bribing  members  of   85 

members  receiving  bribes    86 


INDEX.  815 

Page.   Sec. 

Legislature   candidates   for  accepting  assistance 63i 

contempt  of   117 

disturbance  of  meeting  of  82 

Legislature,     governor    must     communicate    pardons 

to,  etc 1419 

lobbying    in     89 

preventing  from  organizing  81 

recommendations  for  pardon  to  be  reported  to.  1595 

witness  refusing  to  attend  before 87 

Lesser  offense,  when  jury  may  convict  on 1159 

Letter,  opening  or  publishing  sealed    618 

sending  threatening  143 

sending  threatening  to  expose  failings   650 

when  sending  deemed  complete  660 

Levee,  injuries  to   607 

Liberty,  see  Personal  Liberty. 

Libel    228 

comments  on  privileged  report  255 

defined 248 

indictment   for 230 

form  for  indictment   230 

jury  judges  of  law  and  fact  in  1125 

jury  to  determine  law  and  facts  251 

liability  of  editors  and  publishers  for 253 

malice   presumed    250 

penalty  for 229       249 

pleading    in 964 

privileged   communications,   what   are    254 

"        "       256 

publication  defined   252 

purpose  of  law  228 

signature  to  newspaper  articles   259 

threatening  to  publish    257 

truth  may  be  given  in  evidence   251 

venue    230 

Library,  wilful  detention  of  books  of 623J 

License,  carrying  on  business  without   435 

having  blank  receipts  for   *       432 

pawnbroker  must  have   338 

pilot  acting  without  379 

practicing  medicine  without  235 

see  Taxes. 

Lien  of  judgment  of  fine  1206 

Life    imprisonment    671 

is  civil  death   674 

Limitation,  indictment  when  found  803 

in  action  for  murder  799 

none  for  embezzlement  of  public  moneys 799 

none  for  falsification  of  public  records  799 

of   felony    800 

of  misdemeanors    801 

statute  does  not  run  when  defendant  out  of  state  802 


816 


INDEX. 


Page.   Sec. 

Liquors,  jurors  drinking,  misconduct   341 

keeping  within  one  mile  of  insane  asylum 172 

keeping  within  one  mile  of  atate  university....  172 

keeping  within  two  miles  of  state  prison 172 

sale  at  theaters,  prohibited   303 

selling  at  camp  meeting  prohibited  304 

305 

Liquor,  selling  to   Indians    231       397 

form  for  indictment  232 

penalty    232 

Lobbying   in   Legislature   89 

Lobster,  closed  season  for 628 

Locus  delicti,  must  be  proved  as  charged 51 

Locus  quo,  jury  may  view 1119 

Logs,  defacing  marks  on    356 

Lottery,  aiding  in  carrying  on  322 

punishment  for 323 

defined     319 

insuring  tickets  of  prohibited   324 

letting   building    for   purposes   of    326 

property  offered   for  distribution  in  forfeited..  325 

punishment  for  drawing   320 

punishment  for  selling  tickets  in  321 

tickets  sale  of   1109 

Lumber,  defacing  marks  on   356 

Lunatics,  cruel  treatment  of 361 

incapable  of  committing  crime   37 

not  punishable  for  crime  26 

Maiming  of  animals  , 597 

Magistrate,  action  of  in  proceedings  against  corpora- 
tion      1394 

arrested  persons  to  be  taken  before 847 

,    defendant  to  be  taken  before  without  delay 825 

defined    t07 

deposition  before  to  contain  what 812 

duty  of  at  close  of  preliminary  examination. 293,  295 

duty  of  at  riot  726 

duty  of  on  taking  ball   823 

duty  on  failure  of  defendant  to  give  bail 824 

duty  on  proceedings  under  search  warrant 1541 

duty  to  inform  defendant  of  right  858 

duty   toward   defendant    291 

duty  when  defendant  brought  before  858 

duty  when  information  laid  before 811 

exclusion  of  spectators  by 868 

exclusion   of  witnesses   by 867 

jurisdiction  in  preliminary  examination 286 

may  orally  order  arrest   838 

may  order  defendant  searched  when  1542 

may  order  stolen  property  returned   1408 

may  recommit  defendant  released  on  bail  when  1310 

meaning  of   7 

must  deliver  stolen  property  to  owner  1409 


INDEX.  817 

Page.   Sec. 

Magistrate  must     examine     witness     before     issuing 

search    warrant 1526 

must  keep  deposition 870 

must  notify  district  attorney  of  arrest  of  fugi- 
tive    1553 

must  return  proceedings  on  arrest  of  fugitive  to 

the  Superior  Court  1556 

must  supoena  witnesses 864 

neglecting  to   disperse  rioters    410 

officer  delaying  taking  prisoner  before 145 

proceedings   before    291 

proceedings  on   presentment    937 

proceedings  where  defendant  taken  before  an- 
other      826 

proceedings   where    offense    triable  in  another 

county 827 

to  issue  warrant  for  apprehension  of  fugitives  1549 

to  return  papers  to  clerk  883 

to  send  for  counsel  for  defendant 859 

suggestions  to   288 

what  may  admit  to  bail  1277 

when  and  how  defendant  discharged  by  871 

when  defendant  to  be  committed  by  872 

when    duty   to   hold   defendant    283 

when   must   appoint   shorthand   reporter    282 

when  to  issue  warrant  813 

when  to  require  undertaking  from  witnesses..  878 

who  are  808 

Malice,   defined    35,  175 

element  of  murder 33,    34 

express,  in  murder,  must  be  intent  to  kill 175 

implied  when    175 

instructions   on    434 

intent  to  kill  may  exist  without   175 

meaning  of   7 

not   ingredient   of   manslaughter    180 

presumed  "  from  killing   ^ 176 

presumed  from  wilful  act   37 

presumed   in   libel    250 

Malice  aforethought,  defined    188 

essential  to  murder   174 

Malicious   mischief,   defined    594 

effect  of  enumeration  of  acts  constituting 595 

Mandamus  to  compel  preliminary  examination 282 

Manifest,  making  false    541 

Manslaughter    180 

by    carelessness     182 

death  in  other  county,  jurisdiction  for 46 

death  must  be  within  a  year  and  a  day 194 

defined    192 

homicide  in  mutual  combat  when  180 

Instructions   on 425 

involuntary    181 

jurisdiction  for  county  where  injury  inflicted..     47 
malice  not  ingredient  of  180 


CRIMC8--62 


818  INDEX. 

Page.    Sec. 

Manslaughter,    penalty    for    206 

provocation  sufficient  to  reduce  wilful  killing  to  180 

punishment  of   193 

voluntary     180 

see  Murder,  see  Homicide. 

"Market,  fraud  to  affect  395 

Marriage,  making  false  return  of  360 

promise  of  in  seduction  268 

proof  of  in  bigamy  95 

seduction  under  promise  of  268 

solemnizing   incestuous    359 

when  a  defense  to  seduction 269 

Married  person  selling  land  by  false  representation..  534 

Married  women  to  give  security  as  witnesses .880 

when  punishable  for  crime   26 

Marrying  husband  or  wife  of  another 284 

under  assumed  name    149 

under  assumed  character   528 

Marshal   is  peace  officer   817 

Mask,   wearing  of 185 

Mayhem    233 

assault  to  commit    220 

defined    203 

form  of  indictment  for   234 

penalty  for   234       204 

Meadow  larks,  destruction  of   637a 

Medicine,  mingling  poison  with,  how  punished  347 

Medicine,   practicing  without  license    235 

form  of  indictment  for  236 

defendant  must  show  license 235 

emergency  defined   235 

penalty    for    236 

Mendicant,  disposing  of  child  for  business  of.. 272 

Mercy,  recommendation  to  not  a  part  of  verdict....  443 

M  i  lestones,  malicious  injury  to  ; 590 

Militia,  aid  of  in  suppressing  riot   728 

firing  blank  cartridges  at  mob  731 

liability  of  officer  for  acts   731 

must  obey  orders   729 

when  to  be  ordered  out 725 

Military,   not   affected   by   code    11 

Military  stores  of  the  state,  selling  443 

unlawfully   retained    442 

Ministerial  officer,  see  Officer. 

Minors,  admission  to  place  of  prostitution   309 

permitting  to  play  in  saloon  336 

receiving  pledge  from  501 

requiring  to  labor  more  than  eight  hours 651 

selling  tobacco  to  308 

when  court  may  suspend  judgment  of  conviction  1388 

Miscarriage,  advertising  to  produce   317 

see  Abortion.  ,1 


INDEX.  819 

Page.   Sec. 
Misconduct  of  attorneys    160 

Misdemeanor,  admission  to  bail  In   829 

aiding  in,  how  punished  659 

defendant  may  waive  jury  in   55 

defined    33        17 

dismissal  a  bar  in   1387 

^igh  and  low,  not  recognized   33 

how    punished    450        19 

iury  may  be  waived  in  trial  of  1042 

limitation  of 801 

presentation  by  indictment  gives  no  jurisdiction 

to    Superior    Court    49 

"rial  of  may  be  had  in  absence  of  defendant. .  1043 

statute   of   limitations    on    47 

when  arrest  may  be  made  for  840 

when  may  be  compromised   1?77 

MiT".    meaner  in  office   237 

penalty  for    238 

Mis::rision  of  treason  defined    38 

punishment  of   38 

Mob,  firing  blank  cartridges  at  by  militia 731 

Mock   auctions,  obtaining  property  by 535 

Money,  circulating  paper  as 648 

i?suing  paper  to  circulate  as   648 

of  county,  grand  jury  may  order  suit  to  recover  929 

taken  from  defendant,  duty  of  officer 1412 

see  Public  Money. 

Monomaniac  may  be  responsible  for  crime 38 

Month,  meaning  of 7 

Monuments,   defacing 296 

Monument  defacing,  see  Sepulcher. 

Moral   insanity,  no  defense 38 

Mortgage,  giving  second  fraudulently 538 

Mortgaged  chattels,  removal  of 537 

Mortgaged  property,  removal  of 502^ 

Motion  in  arrest  of  judgment  458 

to  set  aside  indictment  when  heard    997 

to  set  aside  information,  grounds  of 995 

to  set  asid?  information  objections  waived   by 

failure  to  make    996 

to   strike   out   evidence   when    allowed    476 

Mountain  sheep,  killing  of  female  prohibited 626e 

Murder    174 

assault  to  commit    217 

assault  to,  instructions  on 433 

death  In  other  county,  jurisdiction  for 46 

death  must  be  within  a  year  and.  a  day ^-4 

defined •  •  187 

degrees  of   177      189 

degrees  of  distinguished    179 

deliberation   and    premeditation   defined 179 

essentials  of 174 


820  INDEX. 

Page.   Sec. 

Murder,  felonious  intent  judged  by  result    176 

form   for   indictment    209 

Imprisonment   pending   execution   part   of    pun- 
ishment     451 

in  commission  of  another  felony  176 

in  resisting  arrest  177 

indictment  for    206 

intent  to  kill  essential  to  first  degree 179 

Intent  to  kill  may  exist  without  malice 175 

Intent  to  kill  need  not  be  a  particular  person.,   176 

Intent  to  kill  not  necessary  to  constitute 175 

Intent  to  kill  shows  express  malice 175 

instructions   on 425 

insruction  on,  degrees  of   425 

jurisdiction  for,  county  where  injury  inflicted..     47 

jurisdiction  in  certain  cases  of   790 

killing  must   be  with  malice  aforethought 174 

law  presumes  killing  malicious   174 

malice  an  element   •     33 

no  limitation  for  action  for   4(       799 

penalty  for 205       190 

premeditation  and  deliberation  in   179 

presumption  of  malice   176 

provocation  not  sufficient  after  cooling  time  . .     181 

wanton   recklessness    177 

when  burden  of  proof  shifts  on  defendant 1105 

when  circumstances  determine  degree 178 

when  law  supplies  intent  to  kill   177 

when  means  used  show  premeditation 178 

when  occasion  of  killing  shows  premeditation..  178 
see  Homicide,  see  Manslaughter. 

Museums,  injury  to  things  deposited  in   623 

Mute,  effect  of  defendant  standing   ,     65     1024 

Mutilation  of  books  in  public  libraries 623 

Mutiny,  see  Disturbance  of  the  Peace. 

Mutual  con^bat,  declining  further  struggle   187 

right  of  self  defense  in   187 

when  is  manslaughter    18C 

National   guard,  conduct  of  troops    731 

member  refusing  to  obey  orders   653 

must  obey  orders 729 

officer  failing  to  perform  duty   652 

Navigable  stream,  obstruction  of 611 

Neglect,  meaning  of  7 

Neglecting   children    270 

Negligence,  criminal  or  criminal  intent  necessary  to 

constitute  crime    33 

death   by    368 

369 

wanton,  killing  by  when  murder 177 

Net,  catching  fish  with    634 

certain   declared   nuisances    636a 

length  of  636 

Netting  of  game  prohibited   631 


INDEX.  821 

Page.   Sec. 

Newspaper,  misrepresentation  of  circulation   538J 

opinion  founded  on,  no  disqualification  of  juror  337 

publications  when  contempt  112 

publications  of  truth  when  not  contempt 113 

publishing  cartoons    258 

publishing   portraits   without   authority    258 

reading  by  jurors  misconduct  342 

signature  to  articles  of  personal  character 269 

when  opinion  founded  on  statement  of,  not  dis- 
qualification to  juror 1076 

New    trial 454 

application  for,  must  show  what 455 

application  for,  when  made 454    1182 

before  justice  of  the  peace  1451 

defined    1179 

effect  of  granting   458     1180 

errors  reviewable  on  457 

exception  to  granting  or  refusing 1172 

grounds  of  motion  for   454 

granting  within  discretion  of  trial  court  456 

heard   without  bill   of  exceptions    458 

in  what  cases  granted   1181 

notice  of  motion  for  no  part  of  judgment  roll  454 
motion  for  cannot  be  amended  after  judgment..  457 
motion  may  be  heard  by  successor  of  judge....  458 

en  appeal  to  Superior  Court  1469 

ordered  for  defective  verdict  1156 

plea  of  once   in   jeopardy  cannot  be  made  be- 
cause of  granting  of  62 

when  granted    457 

where  to  be  had    '       1261 

Night  J-ne  defined   103       450 

463 

disturbance  of  peace   in    415 

hunting  in  prohibited    626m 

when  search  warrant  may  be  served  in 1533 

Nolle    prosequi    abolished    1386 

Non  residence   prevents  running  of  statute  of  limita- 
tions       47 

Non-suit,    defendant   not   entitled   to    390 

Not  guilty,  effect  of  plea  of 317 

evidence  admissible  under  plea  of 1020 

plea  of,  puts  in  issue  what  1019 

Note,  forgery  of   470 

Notice  of  settling  bill  of  exceptions 467 

two  appeals  cannot  be  taken  on  one 462 

Notice  of  appeal  may  be  served  by  publication 1241 

Notice  of  application  for  pardon,  publication  of 1422 

when  not  required   1423 

Nuisances,  certain  fish  nets  declared  to  be 636a 

extent  of  damage  by  371 

jurisdiction  of  Superior  Court  49 

maintaining  of   372 

Oath,  authority  to  administer  essential  in  perjury 242 

defined 119 


822 


INDEX. 


Page,   Sec. 

Oath,   false   is   perjury    240 

foreman  of  grand  jury  to  administer  918 

irregularity    in    administering    not   material    in 

perjury 121 

of  grand  jurors 904 

of  office,  not  basis  of  perjury  120 

Objections  to  jurisdiction,  how  taken  49 

Obscene  books,  etc.,  information  for   968 

Offense,  but  one  can  be  charged  in  information 307 

conviction  of  higher,  effect  of   1.023 

defined  33 

grand  jury  to  inquire  into 915 

how  prosecuted   888 

punishment  where  no  penalty  prescribed 177 

,          information  to  charge  but  one  954 

when  evidence  of  other  admissible   378 

Office,  buying  appointments  to   73 

exercising  functions  of  wrongfully 75 

legal,  de  facto  officer  must  have 48 

misdemeanor  in 237 

refusal  to  surrender  books  to  successor 76 

removal  from  for  neglect  of  duty  651 

Officer,  accusation  against,  failure  to  appear 761 

accusation  against,  pleadings  by  762 

accusation  against  presented  to  grand  jury 758 

accusation   against   to   be   delivered   to   district 

attorney 760 

action  without  qualifying 65 

66 

allowing  convicts  to  escape   108 

appeal   from   judgment   of   conviction    for   mis- 
conduct      770 

arrest  by    836 

arrest  without  warrant,  duty  of 849 

asking  or  receiving  bribe   68 

assault  by   * 149 

authority  to  overcome  resistance 723 

certify  resisters  to  court 724 

code  applies  to  administrative  and  ministerial.  77 

confining  prisoners  discharged  on  habeas  corpus  363 

delaying  taking  prisoner  before  magistrate 145 

demanding  illegal  fees  extortion   143 

disclosing  fact  of  finding  indictment 168 

disposition  of  stolen  property!  by 1407 

disqualification  of  by  conviction  of  crime 98 

duty  of  militia  to  obey  civil  when 730 

duty  of  on  executing  warrant 828 

duty  to  execute  warrant   816 

duty  to  inform  governor  of  riot 728 

duty  to  prevent  duels  230 

duty  to  prosecute  for  gambling 335 

effect  of  judgment  of  conviction  for  misconduct  770 

embezzlement  by    133       504 

embezzlement  and  falsification  of  accounts  by. .  424 

extortion  by  521 

failure  to  pay  over  fine 42T 


INDEX.  823" 

Page.   Sec. 

Officer,   false   certificate   by    167 

form  of  accusation  against   759 

form  of  denial  of  accusation  against 764 

giving  or  offering  bribe  to 67 

inhumanity  to  prisoners  T47 

interested  in  contracts 71 

making  arrest  without  authority 146 

may   break  doors  to  liberate  person  acting  in 

aid  of  1532 

may  break  doors  to  serve  search  warrant 1531 

may  prevent  crime,  how 697 

misconduct  of 758 

must  be  allowed  to  inspect  pawnbroker's  regis- 
ter    343 

must  be  sworn  to  keep  jury  together 1128 

must  certify  to  telegraphic  copies  of  warrant...  851 
need  not  disclose  official  character  in  arrest. . . .   291 

neglecting    to    pay    over    public    money 425 

objection  to  accusation  against  763 

obstructing  in  collecting  revenue 428^ 

omission  of  duty  by  176 

pawnbroker  refusing,  to  disclose  sale  to 342 

person  acting  as  without  appointment 40- 

persons  justified  in  aiding 698- 

pretending     to     give     authority     to     conduct 

gambling 337 

proceedings  after  conviction  for  misconduct 7C9- 

proceedings  on  accusation   7C6 

process    for    witnesses    on   trial    of   accusation 

against ^^8 

refusing  to  aidi  in  arrest 15J 

refusing  to  issue  or  obey  habeas  corpus 362 

refusing  to  make  arrest l''-2 

railroad,  making  overcharges    525 

removal  by  summary  proceedings  772 

resistance  of  public    261 

resistance  of ^^' 

"  148 

retaking  goods  and  custody  of 102 

right  of  in  making  arrest 291 

right  to  go  armed 291 

stealing  or  destroying  records 113 

taking!  fee  for  arresting  fugitives 144 

tax,  refusing  to  permit  inspection  of  books 440' 

to  give   receipt   for   property   taken   on   search 

warrant   ^  ^^^' 

to  keep  record  of  stolen  property 1413 

trial  by  jury  of  accusation  against 7C  / 

what  constitutes  resisting  arrest  by 183 

when  doors  and  windows  may  be  broken 844 

845 

when  justified  in  homicide  196^ 

when  justified  in  killing  in  making  arrest 183 

when  must  answer  accusation 765 

who  liable  to  impeachment   73T 

see  Sheriff,  Coroner  and  Constable. 


824  INDEX. 

Page.   Sec. 

Officer,  de  facto,  must  have  legal  office 48 

Officer  of  corporation  fraudulently  keeping  books 563 

making  false  reports  564 

Officer  of  insolvent  bank  receiving  deposits 562 

Officer  of  railroad  company  contracting  unauthorized 

debts    /. 566 

Officer  of  savings  bank  overdrawing  account 561 

Officers  of  state  prison,  duty  of 1578 

report  of 1579 

Official  duty,  omission  to  perform,  when  punishable..  662 

violation  of,  penalty   661 

Official  proceedings,  true  report  privileged 254 

Operator,  bribery  of 641 

postponement  of  telegraphic  message  by 638 

use  of  information  in  telegraphic  message 639 

Opium,  keeping  resort  for  smoking 307 

resorting  to  place  where  used 307 

Order  after  judgment,  exception  to 1172 

Overcharges,  railroad  officers  making 525 

Overt  act,  necessary  to  attempt 35 

when  essential  to  conspiracy 184 

Ownership,  allegation  of  in  indictment  for  arson 81 

how   alleged    306 

in  arson,  defined) 452 

in  embezzlement  135 

must  be  by  another  in  robbery 263 

Oysters,  trespassing  on  beds  of 602 

Panel,  challenge  to 331 

challenge  to,  grounds  for 1059 

defined  1057 

see   Jury. 

Parade  with  arms,  who  may 734 

Pardons,  application   for    1420 

district  attorney  must  be  notified  of  application 

for    1421 

governor  may  grant   1417 

publication  of  notice  of,  application 1422 

recommendations   for    1595 

when  notice  of  application  not  required 1423 

Parent   deserting   child    271 

neglecting  child   270 

insulting  teacher •. . .  654 

Parties,  how  designated  on  appeal 1236 

to  criminal  action   684 

to  special  proceedings,  how*  designate<i 1562 

Partnership,  fraud  in  358 

Partridge,  closed  season  for 626 

killing  of  prohibited    626c 

possession  of  in  closed  season 626k 

Pawnbroker,  conducting  business  of  without  license. .  338 

charging  unlawful  interest  340 


INDEX.  S26 

Page.   Sec. 

Pawnbroker  must  allow  officer  to  inspect  register 343 

must  keep  register    339 

refusing  to  disclose  sale  to  officer 342 

unlawfully  selling  pledges  341 

Peace,  commitment  to  keep 708 

disturbance  of  in  night  time 415 

effect  of  security  to  keep 707 

security  to  keep  * 697 

security  to  keep,  when  required  714 

undertaking  to  keep,  when  broken 711 

undertaking  to  keep,  where  filed 709 

when  security  to  keep  required 706 

whose  duty  to  preserve  720 

see  Disturbance  of  the  Peace. 

Peace   officer   defined    817 

meaning  of 7 

Penalty,  necessary  to  constitute  a  crime 33 

void,  jurisdiction  not  destroyed  by 49 

where  none  prescribed  177 

see  Various  Crimes. 

People,  bias  of,  change  of  venue  for 325 

criminal  action  prosecuted  in  the  name  of 684 

may  appeal  when   1238 

not  entitled  to  change  of  venue 327 

pleadings   of    300      949 

when  may  appeal  461 

Perjury    239 

authority  to  administer  oath  essential 242 

defined   118 

deposition,   when   deemed  complete  in 124 

evidence   242 

form  for  indictment  245 

form  of  oath  not  material 242 

how  pleaded    966 

incompetency  of  witness  no  defense 122 

indictment  for    243 

instructions  on  434 

irregularity  in  administering  not  material 121 

knowledge  of  materiality  not  necessary '      123 

materiality  of  the  false  testimony 240 

not  predicated  on  oath  of  office. 120 

penalty  for  245       126 

procuring  false  evidence  241 

punishment   when   procures   execution  of  inno- 
cent  person    128 

subornation  of    243       127 

testimony  of  witness  against  himself 14 

unqualified  statement  when  is   125 

upon  what  oath  may  be  predicated 240 

Personal  liberty,  infringement  of  181 

Personal   property,  meaning  of   7 

see  Property. 

Personation,  see  False  Personation. 

Pesthouse,  keeping  within  a  town 373 


826  INDEX. 

Page.   Sec. 
Petit  jury,  see  Jury. 

Petit   larceny   defined 488 

and  prior  conyiction,  punishment  for 667 

penalty   for 490 

see  Larceny. 

Petit  treason  abolislied  191 

Plieasant,  liilling  of  prohibited    626c 

possession  of  in  closed  season 626k 

Phrases,  how  construed   7 

Physician,  acting  while  intoxicated    ? 346 

Pictures,  indecent  prohibited  311 

Pilot,  acting  without  license  .   379 

Plea 315 

before  justice  of  the  peace  must  be  oral 1429 

essential  to  conviction  316 

how  entered   lOOS 

kinds  of   316    1016 

must  be  oral  316     1017 

no  presumption  of  317 

of  once  in  jeopardy,  how  made 65 

raises  issue  of  fact   1041 

record  must  show    317 

to  jurisdiction,  how  taken 49 

verdict  must  find  on  each.  317 

withdrawal  of 317 

Plea  of  guilty,  court  must  determine  degree  on 1192 

duty  of  court  under   317 

how  entered    1018 

must(  be  in  person  317 

no   trial    required    on    319 

is  conviction    60 

waives  jury 55 

withdrawal  of    1018 

Plea  of  not  guilty,  effect  of 317,  318 

puts  in  issue  what   1019 

Pleadings    300 

errors,  when  not  material  in 1404 

on  part  of  defendant  1002 

on  part  of  people   949 

tested  by  code 948 

see  Information  and  Indictment. 

Pledges,  pawnbroker  must  keep  record  of 339 

receiving  from   minor    501 

selling  without  consent   581 

unlawful  sale  by  pawnbroker   341 

Plover,  closed  season  for 626 

possession  of  in  closed  season 626k 

Poison,  administering   216 

mingling  with  food,  etc.,  how  punished 347 

Poisoning  cattle  596 

Police,  attendance  in  exposed  places 697 

regulation  of  in   cities    719 


INDEX.  827 

Page.    Sec. 

Police  court  defined  1461 

proceedings  before,  how  commenced  1426 

Police  magistrate  in  towns  or  cities  is  magistrate. . . .  808 

Policeman  is  peace  officer  817 

Poll    of  jury,   when  made 1163 

Poll  taxes,  see  Taxes. 

Pollution  of  water   248 

Portrait  publishing  without  authority    258 

Posse  comitatus,  refusing  to  join  150 

Possession  of  burglarious  instruments 466 

of  deadly  weapon  with  intent  to  assault 467 

Postponement,  disposition  of  defendant!  on 862 

duty  of  magistrate  on  292 

of  preliminary  examination    292 

of  trial  beyond  sixty  days,  good  cause  for 53 

of  trial,  wheni  made , 1 052 

of  trial  beyond  sixty  days,  when  authorized 53 

Pound    defined    555 

Pregnant    woman,    proceedings    where    sentenced    to 

death    1225 

warden  must  suspend  execution  of i226 

Preliminary  examination    282 

cannot  be  waived  in  felony 283 

commitment  for,  how   made    292 

defendants    jointly    charged    no   right   to   sepa- 
rate        282 

depositions,  when  admissible  at  trial   385 

duty  of  magistrate  at  close  of 293,  295 

duty  of  magistrate  on  postponement 292 

essential    to   information    282,287 

exclusion  of  spectators 293 

exclusion  of  witnesses  at 293 

for  information  set  aside 284 

how  testimony  at  authenticated 287 

information  need  not  allege 285 

jurisdiction  of  magistrates   in    286 

may  be  compelled  by  mandamus 282 

must  be  complete  at  one  session 292 

not  essential  to  indictment 287 

order  admitting  to  bail  on   293 

order  of  discharge  293 

postponement  of    292 

separation  of  witnesses  293 

what  defects  in  avoids  conviction. 285 

when  defendant  to  be  held  on 293 

when  to  be 860 

written  confession   sufficient   283 

Premeditation  defined  179 

when  means  used  in  killing  show 178 

when  occasion  of  killing  shows 178 

Preparation,  to  commit  crime  defined 34 

Presentment  defined    91ft 

number  of  grand  jurors  to  be  made  by 931 


823  INDEX, 

Page.   Sec. 

Presentment  proceedings  of  magistrate  on  937 

to  be  filed  in  court  932 

when  benchi  warrant  issued  on 933 

President  of  senate,  when  to  act  as  prison  director. . . .  1574 

Presumption   against  error  on  appeal   469 

as  to  character  of  defendant 382 

as  to  evidence  contained  in  bill  of  exceptions. . .  466 

favorable  to  grand  jury  296 

in  favor  of  bill  of  exceptions  467 

in  favor  of  jurisdiction  of  courts   48 

in  favor  of  record  on  appeal 462 

none  of  plea  317 

none  of  specific  intent 36 

none  in  favor  of  information  311 

none  that  good  cause  existed  for  delaying  trial     54 

of  continuance  of  life  in  bigamy 94 

of  intent  from   act    36 

of  insanity,  once  shown 40 

of   sanity 40 

of  responsibility  for  act 36 

Presumption  of  fact  for  jury 406 

Presumption  of  guilt  on  application  for  bail 66 

Presumption  of  innocence   65 

Presumption  of  law,  need  not  be  pleaded 961 

Presumption  of  malice  fromj  wilful  act 37 

Presumption  of  prejudice  from  error  471 

Presumptive  evidence    387 

Previous  conviction,  verdict  on  charge  of 1158 

see  Conviction.  i 

Primary  election  laws,  oitenses  against 64i 

Principals,     aiding     and     abetting     both     necessary 

to  make    42 

by  aiding  in  felony  liable  for  any  crime  com- 
mitted         42 

by  aiding  in  misdemeanor  not  liable  for  felony 

not  incidental    42 

jurisdiction  over,  non-present 47 

who  are    31 

Principal  and  accessory,  common  law  distinction  abro- 
gated         41 

defined 41,     42 

distinction  between  abrogated    971 

Printing,  collusion  in  furnishing  materials  for 100 

Printing  superintendent  of  interested  in  contracts  for  99 

Prior  conviction  in  foreign  state,  effect  of  668 

kind  of  verdict  on  440 

punishment  for  crime  after   452       1566 

when  makes  felony   451 

see  Conviction. 

Prison,  carrying  into  things  to  aid  escape 110 

grand  jury  entitled  to  access  to 924 

taking  contraband  articles  into   180a 

see  Escapes. 
Prison  director,  when  president  of  senate  to  act  as. . .  1574 


INDEX.  829 

Page.  Sec. 

Prisoner,  assisting  to  escape  .  109 

credits  for  good  behavior 451 

deportation  no  part  of  punishment  451 

discipline  of    1592 

form  for  conveying  instruments  to 141 

how  brought  before  court  1567 

how  classified  in  county  jail 1599 

in  county  jail  must  be  actually  confined 1600 

Inhumanity   to 147 

labor,  limiting  sale  of  products  of 679a 

may  be  required  to  labor  when 1613 

officer  allowing  to  escape 108 

'    officer  delaying  taking  before  magistrate ": . . .  145 

on  civil  process  1612 

removal  of  in  what  cases 1607 

"     "       "         "       1608 

rescue  of 101 

rules  and  regulations  for  discipline  of 1576 

service  of  paper  on  jailer  for  1609 

sheriff  answerable  for  safe  keeping  of 1602 

to  be  returned  to  county  jail 1606 

under  life  sentence,  assiult  by 246 

when    discharged 28 

Private  statute,  how  pleaded  963 

Privileged  communications  not  admissible 377 

Privileges  of  witness   354 

Prize  fights,  jurisdiction  of 795 

leaving  state  to  engage  in 414 

persona  present  at  413 

prohibited     '. . .  412 

see   Disturbance   of  the   Peace. 

Process,   resisting  after   insurrection 411 

Profanity,  see  Disturbance  of  the  Peace. 

Probable  cause,  certificate  of  468  1244 

Proceedings  before  magistrate    291 

on  what  continuances  granted   323 

when  charge  of  threatened  offenses  is  contro- 
verted      704 

Process,  abuse  of  is  contempt 112 

Promissory  note,  forgery  of  470 

Proof,  burden  of  388 

defined    361 

order  of 476 

of  barratry  159 

of  venue  may  be  indirectly   50 

of  venue  must  be  mads 50 

Propagation,  possession  of  aijimals  and  birds  for  not 

prohibited     6264 

Property,  burning  of  600 

burning,  not  subject  of  arson 600 

burning  or  destroying  insured 548 

fraudulently  concealing,  by  debtor 154 

fraudulently  concealing  by  defendant 15E 

intentj  to  restore  no  defense  in  embezzlement..  512 


830  INDEX. 

Page.    Sec. 

Property,  larceny  of  lost  485 

magistrate  may  order  stolen  to  be  returned  to 

owner    1408 

may  be  conveyed  by  prisoners 675 

obtaining  by  false  pretenses 532 

obtained  by  mock  auction  535 

offered  for  distribution  in  lottery  forfeited 325 

officer  to  keep  record  of  stolen 1413 

ownership  of  in  larceny   215 

procuring  by   false  personation    530 

refusing  to  list  to  assessor   429 

restoration,  eifect  in  embezzlement 513 

stolen,  court  may  order  return  of 1410 

stolen,  delivered  by  magistrate  to  owner 1409 

stolen,   disposition   of   unclaimed 1411 

stolen  or  embezzled,  disposition  of  1407 

stolen  out  of  and  brought  into  state 789 

subject  of  embezzlement    131 

subject  to  larceny   215 

taken  from  one  county  to  another,  jurisdiction...  786 

taken  on  search  warrant,  disposition  of 1536 

taken  on  search  warrant,  when  restored 1540 

value  of,  not  material  in  robbery 264 

value  estimated  in  gold  coin 678 

what   includes    7 

Prospectus,  unauthorized  use  of  names  in 559 

Prostitution,    abduction   for    267 

admitting  minors  to  place  of  309 

enticing  to  place  of   318 

modes  of 282 

seduction  for   266 

see  Seduction. 

Protest,  meaning  of   7 

Provocation  sought  by  slayer  in  homicide 181 

sufficient    to    reduce     wilful     killing    to    man- 
slaughter      180 

words  of  reproach  are  not  sufficient 181 

Public  administrator,  neglect  of  duty 143 

Public  improvements,  injuries  to 622 

Public  library,  injury  to  books,  etc.,  in 623 

Public  offense,  information  of  before  magistrate 811 

Public  office,  omission  to  specify  forfeiture  10 

Public  money  defined 426 

embezzlement  of,  no  limitation  for 47 

officer  neglecting  to  pay  over  425 

Public  meetings,  duty  of  officers  to  preserve  peace  at  720 

Public  nuisances  defined    370 

see  Nuisance. 

Public  records,  no  limitation  for  falsification  of 47       799 

Public  trial,  convenience  of  court  not  to  be  consulted  54 

defendant  entitled  to    54 

denial   of,   presumed    prejudicial    54 

exclusion  of  some  not  denial  of  right 54 

purpose  of  explained    54 

right  of  court  to  exclude  witnesses  and  jurors. .  54 


INDEX.  S81 

Page.   Sec. 

Punishment    448 

accessory     33 

assault  to  rape  451 

circumstances  in  aggravation  or  mitigation  of..  1203 

circumstances  in  mitigation  must  be  heard   in 

open   court    1204 

court  may  receive  evidence  in  mitigation  of 445 

duty  of  court  to  fix 12 

"      "       "        "    "    13 

for  act  punishable  under  foreign  law 655 

for   prior  conviction    452 

mitigation  of  in  contempt   658 

only    after    conviction    681 

prisoner  cannot  be  deported  as  part  of 451 

property  is  valued  in  gold  coin 678 

where  none  prescribed   450 

when  two  are  prescribed 654 

see  Penalty,  see  Various  Crimes. 

Quail,  closed   season  for    626 

killing   of    prohibited    626c 

possession  of  during  closed  season 626k 

Qualifying,  officer  mast    65 

66 

Quarantine,  violation  of  laws  of 376 

Quicksilver,  counterfeiting  stamps   366 

selling  debased  367 

Racing    upon    high-ways 396 

Rafts,  burning  or  injuring  608 

Railroad  collisions,  death  from  369 

jurisdiction  of  offenses  committed  on 783 

malicious  injury  to 587 

train  wrecking  on 277 

see  Train  Wrecking. 

Railroad  company,  employees  of  violating  duty 393 

officer  of  contracting  unauthorized  debts 566 

officers  of  making  overcharges  525 

transporting  game    627a 

unauthorized  debt  not  invalid   567 

Railroad  tickets,   counterfeiting    481 

restoring  cancelled   482 

Rape     249 

age  of  prosecutrix,  evidence  of 251 

assault  to  commit 255       220 

assault  to  commit,  punishment 451 

consent  obtained  by  fraud  249 

defined    261 

essential  guilt  of 263 

evidence  of   250 

evidence  of  unchaste  character   254 

evidence  of  other  acts  of  intercourse 253 

form  for  indictment  in  ,. .   256 

incapacity  of  defendant  to  commit 254 

indictment  for   255 

Instructions  on    436 


832  INDEX. 

Page.   Sec. 

Rape,  intoxicating  and  narcotic  substances   249 

object  of  fixing  age  of  consent 250 

penalty  for    256 

penetration,  when  sufficient  265 

physical  condition  as  evidence   253 

prosecutrix  need  not  be  corroborated 252 

public  complaint  as  evidence 252 

punishment  for 264 

under  age  of  consent 249 

what  penetration  sufficient 250 

when  capacity  of  defendant  must  be  proved ....  262 

when  force  an  ingredient  of  offense 249 

when  immediate  disclosure  an  element 250 

Reasonable  doubt,  instruction  on  422 

Real  property,  fraudulent  conveyances  of  531 

meaning  of    7 

Realty,  after  severing  from  to  steal  496 

Receiving  stolen  property 257       496 

evidence    259 

form  for  indictment  for 260 

indictment  for    259 

penalty   for 259 

thief  may  be  accomplice  in 259 

venue   259 

what  acts  necessary  to  show 257 

Recommitment,  contents  of  order  1311 

of  defendant,  when  ordered 1313 

see  Bail. 

Recess,  meaning  of   292 

Recesses  of  court  defined 50 

Record,  court  may  amend 399 

forgery  of  entry  in  books  of 471 

no  limitation  for  falsification  of  public 799 

offering  forged  instrument  for 165       115 

on  appeal   462 

Re-direct  examination  defined 360 

Referee,   bribery  of    92 

Registration,  fraudulent,  how  punished 42 

see  Election  Laws. 

Religious   meeting,   disturbance   of    302 

Remedy,  no  right  to  particular 59 

Remittitur,  jurisdiction  ceases  on  issuing  of 1265 

Removal  from  office,  see  Misdemeanor  in  Office. 

Removal   of  imprisoned   witness 1333 

Removal  of  mortgaged  property 502i 

Removal  of  officer,  see  Officer. 

Reporter,  shorthand,  magistrate  must  appoint  in  homi- 
cide  cases    283 

Reporter's  notes  as  evidence 386 

of  former  trial,  as  evidence 55 

Reprieves,  governor  may  grant  1417 


INDEX.  gjgr- 

Rescue    of   prisoners 101" 

retaking   of  persons   from    g54* 

Reservoir,  Injuries  to   g07' 

Resistance,  authority  of  sheriff  to  overcome 728 

officers  certify  to  court  persons  making ^24 

to  crime,  any  person  may  make 994 

to  crime,  when  lawfully  made 692 

to  prevent  crime    693 

Resistance  of  public  officers   261  148 

form  of  indictment  for  262 

indictment  for   261 

penalty  for   _  262 

Resisting    officer    69 

Respondent,  party  adverse  to  appeal  is 1236 

Responsibility,  law  presumes,  for  act 36 

Returns,  see  Election.  I 

Revenue,  obstructing  officer  in  collecting 428 

Reward  for  apprehension  of  fugitives   1547 

Riding,  fast  on  toll  bridge 388 

Right  to  bail,  by  defendant  66 

Riot,  arrest  of  persons  engaged  in  727 

defined    404 

duty  of  magistrate  at 726 

duty  to  Inform  governor  of 728 

punishment  of   405 

remaining  after  warning  to  disperse 40^ 

suppressing     697 

see  Disturbance  of  the  Peace. 

Rioters,  magistrates  neglecting  to  disperse 410 

Robbery    263 

assault  to  commit  220 

defined  211 

evidence 265 

fear  essential  to  212. 

form  for  indictment 266 

indictment  for   266 

Intent    265 

kidnapping  for  209 

must)  be  a  taking  from  the  person 264 

nature  of  fear   264 

ownership  must  be  by  another  263 

penalty  for    266       213 

taking  must  be  against  owner's  will 264 

value)  of  property  not  material 264 

Robbery  of  train   265 

Rules  of  court,  object  of  398 

Rout  defined   406 

punishment  of   408 

Sailor  boarding  houses,  violation  of  law  concerning..  643 

Sage  hen,|  closed  season  for  626 

possession  of  in  closed  season 626k 

Salmon,  closed  season  for  834 

CRIMES--63 


hM  INDEX. 

Page.   Sec. 

Saloon,  payment  of  wages  in 680 

permitting  minor  to  play  in 336 

Salvage,  detaining  property  after  payment 544 

Sanity^  law  presumes 40 

Savings  bank  officer  overdrawing  accounts 561 

Screen,  to  prevent  fish  from  running  stream 629 

■  Sedl  linchides   what 7 

tOrgery   of    472 

Seamen,  enticing  to  desert 644 

harboring   deserting    645 

Search  warrant,  authority  of  officer  in  serving 1531 

by  whom  served   1 530 

copy  of  inventory  delivered  to  whom 1638 

defiaed  1523 

depositions  for,  to  contain  what 1527 

disposition  of  property  taken  on 1536 

5uty  of  magistrate  on  receiving 1541 

form  of  1529 

magistrate  may  order  defendant  searched  when  1542 
magistrate    must    examine    witness    before    is- 
suing      1526 

maliciously  procured  170 

must  be  executed  within  what  time 1534 

must  be  supported  by  affidavit 1525 

officer  to  give  receipt  for  property  taken  on  . . .  1535 

proceedings  where  grounds  of  are  controverted  1539 

property  taken  on,  when  to  be  restored 1540 

return  on   1537 

when  may  be  served  in  night 1533 

when  to  issue 1528 

when  to  be  issued 1524 

Second    offense,   effect   of  statute   increasing   punish- 
ment  for    ; 63 

how    punished    667 

Second  term,  when  to  commence  669 

Secret  society,  unauthorized  use  of  badges  of 543i 

Security  to  keep  the  peace   697 

Security  to  keep  peace,  effect  of 707 

when  required    706 

714 

Seduction    268 

enticing  female  into  house  of  ill  fame 270 

evidence     269     1108 

for  prostitution  266 

form  of  indictment  for  , 271 

jurisdiction    of    784 

penalty  for    271  - 

previous   chaste   character    269 

promise  of  marriage 268 

under  promise  of  marriage 268 

when  marriage  a  defense 269 

Seines,  certain  declared  nuisances 636a 

length  of    636 


INDEX.  835 

Page.   Sec. 
Self  defense,   instructions  on    430 

Selling  land  twice i 272       533 

form  for  indictment  272 

penalty  for   272 

Selling  liquor  to   Indians   231 

see  Liquor,  f:ee  Indians. 

Selling    hypothecated    property    581 

Senate,    president    of,    articles    of    impeachment    de- 
livered  to    739 

trial  of  impeachment  by 738 

Sentence,  amending  before  judgment 446 

cumulative    451 

defendant  may  waive  time  for 448 

defendant  must  show  cause  against 447 

illegal  in  part  446 

Sentence  and  judgment 445 

Separation  of  jury^  when  permitted 1 121 

Sepulcher,   violation   of 273-      290 

form  for  indictment 273 

Servant,  when  guilty  of  embezzlement 508 

Sessions,  as  many  as  are  judges 50 

of  court  defined  50 

meaning  of 292 

.   authority  to  overcome  resistance 723 

Setnet,   use   of  prohibited    636a 

Ship's  register,  false  making  of 541 

Sheriff  answerable  for  safe  keeping  of  prisoners 1602 

answerable   for  safe   keeping   of  U.   S.   prison- 
ers      1602 

compensation  for  transporting  prisoners 1586 

conditions  of  receiving  person  committed  under 

civil  pi^ocess   1612 

is  peace  officer 817 

duty  to  receive  persons  duly  committed 1611 

duty  to  receive  prisoners  in  county  jail 1601 

form  of  commitment  to  for  examination 863 

how  to  execute  judgment  of  imprisonment 1216 

neglecting  to  pay  over  fine 427 

papers  served  on  for  prisoner 1609- 

permitting   prisoner   to   escape 108 

refusing   to   receive  or   arrest   parties   accused 

of  crime   142 

when  disqualified  to  summons  jury   33ft 

when  to  summons  special  grand  jury 909 

when  warrant  directed  to  818 

Signals,  injuries  to 615 

masking  or  removing  610 

Sodomy,  see  Crime  Against  Nature. 

Soil,  removing  from  land  of  another 602 

Sound  mind,  intent  depends  on 37 

who  are  of    21 


836  INDEX. 

Page.   Sec. 

Special  proceedings,  parties  to  how  designated 1562 

witnesses  may  be  subpoenaed  for 1564 

Specisl  verdict,  form  of 1154 

how  prepared  and  entered 1153 

proceedings   on    1166 

to  contain  what 1152 

Speedy  trial,  right  of  defendant  to 686 

Squirrels,  closed  season  for  626g 

State  includes  what 7 

State  prison  contracts  must  be  by  public  letting 1587 

disposition  of  insane  persons   1582 

duty  of  offlcers   1578 

Imprisonment  in,  only  In  felony  cases 450 

keeping  liquor  within  two  miles  of 172 

officers'  report   1579 

under  control  of  board  of  directors   157 J 

State  prison  directors  to  adopt  rules  and  regulations 

of  discipline    1576 

cannot  contract  debts    1585 

compensation  of   1575 

further   powers    1594 

may  appoint  warden)  and  other  officers 1577 

to  make  rules  and  regulations 1592 

to  report  credits  to  governor,  when 1593 

State  prison  fund,  what  is     1583 

how    disbursed    1584 

State  reform  school,  see  Whittier  School. 

State  treasurer,  neglect  of  duty  by 441 

State  university,  keeping  liquor  within  one  mile  of . . . .  172 

Statement,  making  false  concerning  assessment 430 

Statute,  language  of  in  information 958 

Statute   of    limitations,   absent   from   state,   does   not 

run   while    47 

conviction    of    misdemeanor    barred    by,    under 

felony  indictment  48 

for    crimes     47 

Imperative  bar   48 

not  waived  by  asking  continuance 48 

Steal,  see  Larceny,  Robbery,  Burglary. 

Steamboats,  management  of    348 

Steamboilers,  management  of  349 

Stockholder,  right  to  inspect  books  of  corporation 565 

Stolen    property,    from    foreign    country,    no    jurisdic- 
tion         45 

from  out  of  state,  jurisdiction  any  county  where 

brought    4S 

out  of  the  state,  receiving  in 497 

receiving    496 

receiving  distinguished  from  larceny  223 

recent  possession  of  as  evidence  of  larceny. . . .  220 

taken  into  another  county,  jurisdiction  for 46 

see  Receiving  Stolen  Property, 
see  Property. 


INDEX.  837 

Page.   Sec. 

Stream,  placing  screen  in  to  prevent  flshi  from  enter- 
ing      629 

Streets,  court  takes  notice  of  50 

Striped  bass,  taking  prohibited 628 

Subornation  of  perjury   127 

see  Perjury. 

Subpoena  defined '. 1326 

disobedience  of  by  witness 1331 

form  of  1327 

how  served   ' 1328 

justice  of  peace  may  issue   1459 

justice  of  peace  may  punish  for  disobedience  of  1459 

who  may  issue   1326 

Successor,  refusal  to  surrender  books  to 76 

Suicide,  encouraging  400 

Summary  proceedings,  removal  of  officer  by 772 

see  Misdemeanor  in  Office. 

Summons,  form  of  in  information  against  corporation  1391 

how  served   1392 

Summons  to  grand  jurors    297 

Summons  to  trial  jurors 330 

Sunday,  jurisdiction  of  court  on  50 

open  barber  shops  afternoon  prohibited 310i 

Superior  court  appeal  to,  how  taken  and  heard 1467 

effect  of   dismissal  of   appeal  to  1470 

indictments  to  be  filed  in   890 

jurisdiction  in  court  not  department  of 50 

jurisdiction  in  assaults    89 

jurisdiction  vested  in  court,  not  judge   50 

may  grant  writ  of  habeas  corpus  1475 

new  trial  on  appeal  must  be  had  in  1469 

offenses  triable  in   888 

original  jurisdiction  of  49 

statement  on  appeal  to   1468 

indictment  against   1029 

see  Judge. 

Suprerr\e  Court,  jurisdiction  on  appeal  460 

may  grant  writ  of  habeas  corpus 1475 

must  give  opinion  to  governor  on  judgment  of 

death 1219 

proving  bill  of  exceptions  in 465 

Sureties,  see  Bail. 

Surplusage   does  not  vitiate  instruction    409 

see  Information. 

Swearing  falsely,  see  Perjury. 

Tax   collector,   employer   refusing  to   give   names   of 

employees  to    434 

Taxes,  collecting  without  giving  receipt  431 

making  false  statement  concerning  assessment  430 

Tax  officer,  tieglect  of  duty  by  441 

refusing  inspection  of  books   440 

Teacher  of  public  school  insult  of  by  parent  654 


838  INDEX. 

Page.   Sec. 

Telegraph    line,  malicious  injury  to 591 

Telegraph  operator,  intoxication  of   391 

see  Operator. 

Telegraphic  message,  altering  620 

clandestinely  learning  contents   640 

disclosing  contents  of   619 

forgery   of    474 

opening  without  authority   621 

postponement  of   638 

use  of  information  from  by  employees  639 

Tenant,  embezzlement  by 507 

Term,  commencement  of  imprisonment   670 

Terms  of  court,  none  in  California  50 

Testimony,  authentication  of  at  preliminary  examina- 
tion      287 

before  coroner's  inquest  to  be  in  writing 1515 

exception  to  admission  or  rejection   1170 

Instructions  as  to  weight  of 400 

materiality  of  false  in  perjury  240      123 

of  accomplice  must  be  corroborated   364 

right  of  defendant  to  have  conditionally  taken..  686 

Theatres,  sale  of  liquor  at  prohibited 303 

Threatened   offenses,  examination  of  witnesses 702 

information   for 701 

party  complained  of  when  discharged  705 

proceedings  when  controverted   704 

w^hen  warrant  issued  for  703 

Threatening   letters,  sending   143 

sending  to  extort  property   523 

see  Extortion. 

Threats   by  deceased   in   homicide    198 

of  assault  in  court,  security  for  710 

to  obtain  signature 522 

to  publish  libel   257 

verbal  attempt  to  extort  by  524 

what  sufficient  to  constitute  extortion   519 

when  necessary  to  be  communicated  186 

will  not  justify  homicide  186 

see  Extortion. 

Throwing  vitrei   275 

form   for  indictment 275 

penalty  for    j 275 

Tidewater,  what  deemed  in  meaning  of  fish  laws....  634 

Time,  certainty  as  to  information  956 

how   alleged    305 

of  offense,  not  stated,  does  not  affect  jurisdic- 
tion         50 

Timber,  injuries  to    602 

see  Trespassing. 

Title,  claim  of  defense  in  embezzlement  511 

Tobacco,  selling  to  minors,  prohibited 308 

Tollbridge,  crossing  without  paying  toll   389 

fast  riding  and  driving  on   388 


INDEX.  839 

Page.   Sec. 
To  I  house,  malicious  injury  to 589 

Tombs,  defacing   296 

see  Sepulcher. 

Ton  defined   555 

Torturing  animals  597 

Trademarks,  defacement  of   354^ 

Trademark  defined    353 

counterfeiting     350 

refilling  casks  bearing   354 

selling  goods  bearing  counterfeit   351 

ualawful  use  of  354i 

1  rain  dispatcher,  intoxication  of  391 

Train    robbery    265 

Train   wrecking    276 

defined    218 

punishment  for    218 

form  for  indictment    277 

penalty   for 277  , 

Transcript  on  appeal,  duty  of  clerk  to  print 463 

Trancportation  of  game  prohibited   627a 

Trapping,  prohibited    631 

Treason    defined    37 

evidence  on  trial  for 1103 

governor  may  suspend  conviction  of   1418 

jurisdiction  of    788 

overt  act  out  of  state,  jurisdiction  any  county . .     45 

punishment  of 37 

Treasurer  of  county,  receiving  private  deposits 180 

Trespass    defined     -  602 

to  kill  game  627 

upon  water  ditches    :  •  •  •  592 

what  is  not   60S 

Trespassing    278 

form  for  indictment  in    278 

penalty   for 278 

Trial,  absence  of  defendant  must  be  shown   58 

accessory,  place  of 972 

accessory,  what  county   51 

accessory,  when    43 

cannot  be  postponed  more  than  sixty  days 53 

conduct  of  before  justice  of  the  peace  1438 

delay  of  unexcused  beyond  sixty  days  entitled 

to  dismissal   33 

defendant  entitled  to  speedy  and  public 52 

defendant  must  have  time  to  prepare  for 1049 

defendant   ordered   in  custody  at    1129 

exclusion  of  witnesses  during  358 

good  cause  for  postponement  beyond  sixty  days 

must  be  shown  by  people  54 

judge  must  be  present  at    58 

meaning   of   speedy    52 

order  of  1093 

order  of  when  may  be  departed  from 1094 


840  INDEX. 

Page.   Sec. 
Trial,  postponement  of  before  justice  of  the  peace. .  1433 

postponement  of  may     be     made  beyond  sixty 

days,  when   53 

postponement  of  waived  by  going  to  trial 53 

postponement  of  when   1052 

separate,   when  had    1098 

when  defendant  must  be  present   57 

Trial  jury,  how  formed   1046 

see  Jury. 

Trout,  closed  season  for  632 

Trustee,  embezzlement  by  506 

Umpire,    bribery  of   92 

Unclaimed   stolen   property,  disposition  of 1411 

.Undertaking,  evidence  of  breach  of  713 

forfeited  for  failure  of  witness  to  appear 1332 

for   witness    358 

from   witnesses    878 

suits  upon  712 

to  keep  ferry,  violating   387 

to  keep  the  peace   709 

to  keep  the  peace,  when  broken  711 

see  Security. 

United  States  Senator,  election  promises  by   63 

Unlawful  assembly  defined 407 

punishment  of   408 

see  Disturbance  of  the  Peace. 

Unlawful  killing  either  murder  or  manslaughter 174 

Usurpation  of  office  75 

Vagrancy    279 

forms  for  indictment   280 

penalty  for  280 

Vagrants   defined    647 

Variance,  discharge  for  material  does  not  constitute 

jeopardy    61 

former  acquittal  for  effect  of  1021 

in  forgery    162 

in   larceny    222 

Venire,  return  on  no  part  of  judgment  roll 330 

Venue,  application  for  change  when  made  326 

application  for  change  when  granted   1034 

aflidavits  on  change  of  325 

change  for  bias  of  judge  327 

change  for  bias  of  people  325 

change  of  before  justice  of  the  peace  1431 

change  of  proceedings  on  1432 

change  of  transmission  of  papers  on  1038 

defendant  may  except  to  refusal  of  change  ....  1173 

description  in  indictment  for  arson   81 

how  alleged  300 

in  burglary  102 

in  embezzlement  134 

in   homicide    205 

in  larceny    223 


INDEX.  841 

Page.   Sec. 

Venue  in   libel    230 

judgment  arrested  for  variance  51 

grounds  of  change  of  1033 

must  be  proved  50 

no  change  on  application  of  the  people 327 

order  making  change  of  1036 

proceedings  before  magistrate  offense  triable  in 

another   county    827 

proceedings   on  change  of  when  defendant  In 

custody    1037 

where  not  in  custody   1036 

proof  of  may  be  indirectly   50 

receiving  stolen  goods   259 

when  proved  50 

Verdict    439 

amending   443 

as  to  sanity  and  proceedings  on 1370 

assault  to  murder    92 

before  justice  of  the  peace,  how  delivered  and 

entered    1441 

before  justice  of  the  peace    where  defendants 

jointly  tried    1442 

by  lot,  new  trial  for  1181 

contents   of    441 

contrary  to  law  or  evidence,  new  trial  for 1181 

court  deemed  open  until  rendered   1142 

court  may  direct  reconsideration  of  1160 

effect  of  discharge  of  jury  without  1141 

in   assault    88 

in  burglary    105 

in  false  pretenses    156 

in   forgery    163 

in  insanity  440 

effect  of  general   440 

general  defined    440 

judgment  to  be  rendered  on  1155 

juror  cannot  impeach   344 

kinds  of 440 

kind  on  prior  conviction  440 

manner  of  taking 1149 

may  be  general  or  special    1150 

must  find  degree  1157 

must  find  on  each  plea  317 

necessary  to  conviction   689 

of  guilty  imports  what  443 

of  jury  at  coroner's  inquest  1514 

'  proceedings  on   receiving    439 

recommendation  to  mercy  not  a  part  of  443 

recording  of   1164 

upon  previous  conviction   1158 

special    441 

special  effect  of   : 441 

where  defendants  jointly  tried  1160 

when  defendant  must  be  present  at  rendered.  1148 

when  judgment  may  be  given  on  informal 1162 

when   jury   authorized  to   fix  punishment 442 


842  INDEX. 

Page.    Sec. 

Verdict,  when  jury  should  find  general    442 

when   justice    of   the    peace   to   discharge   jury 

without    1443 

when  special  defective,  new  trial  ordered   1156 

when   sufficient    1161 

Vessel,  enticing  seaman   to  desert  from 644 

fraudulently    destroying    53d 

jurisdiction  of  offenses  committed  on   783 

jurisdiction  of  crime  on  46 

masters  of,  violating  quarantine  laws 376 

meaning  of   '.  7 

mooring  to  buoys   614 

punishment  for  destruction  of   539 

540 

setting   adrift    608 

Vitro!,   throwing    275       244 

Voluntary  intoxication  no  excuse  for  crime 39 

Voluntary    manslaughter    180 

see  Murder,  see  Homicide. 
Voting,  see  Election. 

Voting,  fraudulently  at  election   45 

Wages,  payment  of  in  a  saloon   680 

Warden,  how  appointed   1577 

must  suspend  execution  of  pregnant  woman   . .  1226 

Warehouse    receipts,   issuing   fidtitious    578 

when    punishable    579 

Warrant,  by  whom  executed   816 

defendant  to  be  taken  before  magistrate  issuing  821 

duty  of  officer  executing  828 

form  of  289       814 

1427 

how  executed  in  other  counties  819 

Indorsement  for  service  in  other  counties 820 

maliciously  procured   170 

may  be  telegraphed    850 

officer  must  follow  in  making  arrest  848 

telegraphic  copies  by  certified  officer  851 

to  contain  what .'. 815 

to  whom  directed   816 

"       818 

when  issued    289 

when  issued  by  coroner  1517 

when  issued  for  threatened  offenses   703 

when   magistrate   to   issue    813 

when    may    issue    instead    of    writ    on    habeas 

corpus    1497 

when  must  be  shown   842 

without,  duty  of  officer   849 

of  coroner,  form  of  1518 

of  coroner,  service  of  1519 

Water   ditches,   trespass   upon    592 

Water,  form  for  indictment  for  fraudulently  taking. .  167 

fraudulently   obtaining   from   main    625 

larceny  of    499 


INDEX.  843 

...  ,            .     ,  Page.   Sec. 

Water,    polution    of    248       635 

Waterpipes,  injury  or  destruction  of   624 

Weapons  to  be  taken  from  arrested  person 846 

deadly  see     Assaults,     see     Disturbance  of  the 
Peace. 

Weights  and  measures,  defrauding  with  381 

marking  or  using  false  554 

use  of  false   553 

what  must  'be  used  555 

Whittier  school,  commitment  to  without  jury  trial..   450 

right  to  jury  trial  for  commitment  to   55 

Wife,  when  not  competent  as  witness 1322 

Will,  absence  of,  as  affecting  criminal  capacity 37 

forgery  of   470 

impairment  of  does  not  excuse  for  crime 38 

includes    codicil    7 

Wilful,  meaning  of   7 

Wilful   act  defined    35 

Witnesses     346 

about   to   leave  the   state   conditionally  for  de- 
fendant      1336 

accused  to  be  confronted  by,  against  him 55 

application  for    conditional    examination,    how 

made    • 1337 

where  made    * 1338 

attendance     for  conditional     examination,  how 

enforced 1342 

attendance  of  served  out  of  the  county 1330 

bribery   of    137 

cannot  be  .compelled  to  be  against  self  by  con- 
tempt proceedings   113 

commission  to  examine  out  of  the  state 1349 

commitment  on  failure  to  give  security 881 

conditional  examination  of  when  stopped 1341 

conditionally  examined   in  the   absence  of  the 

district  attorney    1340 

conditionally  examined  testimony,  how  taken. .  1343 

conditionally   examined   when    1335 

compelled  to  attend  coroner's  inquest  1513 

compelling  attendance  of   357 

competency  of   346 

competency  not  affected  by  imprisonment 675 

continuance  for  absence  of   321 

credibility   of    347 

deceiving    133 

defying  grand  jury   112 

defendant   as    ■. 355 

defendant  does  not  waive  privilege  as,  by  testi- 
fying         56 

defendant  may  be  discharged  to  be  1091 

defendant  may  waive  right  to  be  confronted  by     56 
defendant  not  compelled  to  be  against  himself  688 

52,     56     1323 
deposition  of  imprisoned  1346 


844  INDEX. 

Page.   Sec. 

Witnesses,  disobedience  of  subpoena  by 1331 

examination  of  359 

examination   in   presence   of   defendant 292      866 

examination  for  threatened  offenses   702 

exclusion  of   293 

exclusion  during  trial   358 

exclusion  of  at  examination  867 

exclusion  of,  not  denial  of  public  trial 54 

from  without  the  county,  expenses  of 1329 

impeachment  of   349 

impeachment  by   contradictory  statements 351 

impeachment   by   reputation    350 

Impeachment,   conviction   of  felony    349 

in  election  cases  no  prosecution  against 64 

incompetency  of  in  perjury  no  defense 122 

infants  and  married  women  to  give  security  as  880 

instruction  on  credibility  of  400,  418,  420 

instruction  on  distrusting  407 

instruction  on  failure  to  call 420 

instruction  on  impeachment  of  419 

juror  having  knowledge  may  be  sworn  as 1120 

magistrate  to  require  undertaking  when 878 

may  be  supoenaed  for  special  proceeding 1564 

names  of  to  be  endorsed  on  indictment 943 

offering  to  receive  bribe  138 

■order  for  conditional  examination,  where  made  1339 

what  to  contain  1339 

out  of  the  state  when  defendant  may  examine 

on    commission 1350 

party  cannot  impeach  his  own  354 

preventing  attendance   136 

privilege    of 354 

riivilege  of  in  prosecution  for  dueling 232 

privilege  of  in  prosecution  for  gaming 334 

refusing  to  attend  before  legislature    87 

refusing  to  attend  trial  for  gaming   333 

residing  out  of  county,  attendance  of 1330 

right  of  defendant  to  be  confronted  with 52       686 

right  to  be  confronted  by,  exceptions  to  rule..     55 

separation  of   293 

temporary  removal   of  imprisoned    1333 

to  be  summoned  on  coroner's  inquest  1312 

testimony,  how  authenticated   869 

unable  to  give  security,  deposition  to  be  taken  882 

undertaking    for    358 

undertaking  forfeited  for  failure  to  appear  ....  1332 
when  defendant  may  be   discharged  when   evi- 
dence is  insufficient    1100 

■when  deposition  of  conditionally  examined  may 

be  used  1345 

when  husband  and  wife  not  competent 1322 

when  party  can  contradict  own    354 

when  security  from  required   879 

-who  competent  as  1321 

written  statements  by  not  admissible 56 


INDEX.  845 

Page.    Sec. 

Women,  abduction  of   26* 

sse  Seduction,  Abortion,  Rape,  Married  Women. 

Woods,  injuries  to   602 

setting  on  Are 384 

Words,   construction  of   7 

construction  of  in  Information   957 

of  statute  use  of  in  information  958 

Wounding  animals    597 

Wrecked  property,  destroying  marks  on  355 

detaining    544 

unlawful  taking  of  546 

Writ,  meaning  of   7 

Writ  of  habeas,  see  Habeas  Corpus. 

Written   instrument.  Injuring  or  destroying   617 

Writing,  indecent  prohibited   311 


PWVKRSITY  OF  CAUFORNU 
».<«  ANGELES 


UC  SOUTHERN  REGKDNAL  L8RAflY  FfOUTY 


A    000  688  479     5 


I 


f 


\ 


r^"'''^""^^^^ 


